Femi Falana

Mr Femi Falana, a Senior Advocate of Nigeria, has argued that the Committee set up by the Lagos State government to issue a white paper on the EndSARS panel report was not competent to tamper with it. He made this submission on Thursday 2 December at the Town Hall Meeting of the Guild of Editors in Lagos on December 2, 2021.

In his words: “When the Government set up a White Paper committee a fortnight ago, I questioned its legal validity. It was my view that since the Committee is unknown to law, the members were not competent to edit, modify, alter, edit or reject the report of the commission. More so, that the members of the White Paper committee did not have the opportunity of taking evidence from the witnesses who had testified before the commission.” I argued further than that the governor “cannot reject the report, summary of evidence and findings of the Okuwobi Judicial Commission in any material particular.

My submission was anchored on section 15 (2) of the Tribunals of Inquiry Law of Lagos State which provides that the governor may  “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. The executive order of the Governor issued in respect of any finding or recommendation of the Panel has “effect as the judgment of the Lagos State High Court”

But in the case of Williams v Dawodu (1988) 4 NWLR (PT 87) 189, the court annulled the aspect of the law that equated the order may pursuant to the findings of a judicial commission to the judgment of the High Court. I am not unaware that it is the practice of governments to issue a white paper on the report of a commission of inquiry.But since there is no provision for a White Paper under the law the Lagos State Government is bound by the findings and recommendations of the Panel. Therefore, any institution and individual indicted by the commission may wish to approach the High Court to challenge any aspect of the report. Since the White Paper Committee is illegal its findings are of no moment.”

Below is his full speech, entitled:

Liberal Democracy In Retreat:  What Can The Media Do?

By Femi Falana

From the tone of the invitation to the conference, it is clear that Nigerian editors at this forum are supposed to learn from the “copious examples from advanced democracies” on how to set an “agenda for a sustainable democratic culture” in Nigeria. To start with, it is hoped that the assumption here is not that the sustainability of democracy could be taken for granted anywhere on the globe. Such an assumption would be patently false. When you seek examples to follow, you should understand fully the nature of the model from which you are drawing “copious” lessons. This is simply because the reality of the world is that even in the “advanced democracies” of the West referred to by the organisers of this parley, liberal democracy is itself in retreat.

The conversations here this morning should, therefore, be squarely situated within the context of this global trend. The symptoms of this malaise of democracy include the emergence of Trumpism in the United States with its enduring consequences as well as the rise of right-wing populism in Europe. These ideological trends constitute a categorical challenge to democratic culture despite the tendency of the western media to give the impression that democratic problems exist only in Russia, China and Cuba.

Democracy is in dire need of defence everywhere in the world. In this battle, the civil society in any country, to which the media conspicuously belongs, has ample lessons to learn from other countries just as it may also have lessons to teach others. The partners too should be humble enough to learn the lessons.  Thus, the orientation that the Nigerian editors should forge by studying the emerging trends in democratic cultures in various climes. To be fair to some eminent theorists of liberal democracy, the present degeneration was foreseen.  It is a case of a disaster foretold, if you like.For instance, Francis Fukuyama almost predicted Trumpism in his acclaimed 2014 book, Political Order and Political Decay.  He warned in the book of the threat to democratic institutions and culture in America. He also interrogated the role of the political elite in the institutional degeneration.

According to the political scientist, “there is no automatic mechanism that produces clean, modern government.” It is significant that it was the same Fukuyama who, following the Fall of the Berlin Wall in 1989, triumphantly proclaimed liberal democracy as the apogee of political development in  his celebrated  essay, The End of History and the Last Man.The  January 6  grand assault by thugs on the Capitol was not just an assault on a great American democratic institution, it was a bastardisation of the very idea of democratic culture anywhere. The decay still continues unabated. Many observers in countries aspiring to develop liberal democracy must have been shocked when months after the invasion of the American parliament, some lawmakers voted against sanctioning former President Donald Trump whose rhetoric evidently inspired the riotous mob whose violence led to loss of lives including those of police officers.

In Britain, misinformation was employed as part of the Brexit campaign. For instance, some fictitious figures were conjured as money that goes to EU’s purse from Britain which could have been better invested in the NHS. At a crucial stage of the Brexit talks, Prime Minister Boris Johnson “prorogued” the British parliament. Johnson had to suspend the “mother parliament” so as to prevent the anti-Brexit lawmakers to have a say on the final deal with the EU. That is not a democratic culture that is worth imitating by any country.

The point at issue here is that in all these countries of the West in which populists and authoritarians are wreaking havoc on democratic culture and institutions journalists are implicated.  Editors in those countries are culpable for deepening what Fukuyama calls a “decay,” There are, of course,  media houses and journalists valiantly defending democratic culture in the U.S. and Britain just as there are  those supporting political  the forces  threatening democracy. If you watched CNN and Fox News in the early days of Trump you could see the distinction being made in this respect. Whereas CNN (whose correspondent was once expelled from the White House) consistently exposed the many lies of Mr. Trump, commentators on Fox News unabashedly rationalised (if not justified) the many absurdities of democracy that defined the Trump tenure. The same distinction could be drawn between New York Times and Newsmax.

The moral of the foregoing is that there is nothing absolute about setting agendas for democratic development.  Every editor and each media house’s approach to agenda setting is shaped by the  ideological orientation. As the American situation has amply demonstrated, it is sheer hypocrisy to claim neutrality in these matters. More often than not, media houses and journalists set agenda to promote the interests of the class and forces to which they align in the society. This point is eloquently made by journalism scholar, Herbert Altschull in his old book aptly entitled Agents of Power. It is either the agency is for a business interest or a political force. So in learning lessons from the “advanced democracies” Nigerian editors should be critical in their approach so that the wrong lessons are not learnt.

In the build-up to 2023, the Nigerian media is hardly setting any agenda beyond amplifying the rhetoric of the fractious political elite on restructuring, zoning or religious divides. There is no debate about development going on in the media. The proof of this assertion which itself is open to debate is the style of diversity reporting in the Nigerian media. It is often said that the Nigerian ruling class has grossly mismanaged the nation’s diversity (which could otherwise be a source of strength and enrichment). But little is said about the unwitting contribution of the media to this crisis of diversity. Instead of identifying a murderer by his vocation or age, editors would rather identify him by his ethnic or religious affiliation in provocative headlines.  As a lawyer, I know too well that the ethnic or religious label attached to a criminal suspect does not enhance the process of prosecution. What matters is the evidence of the crime. The faith or tongue of the suspect is never a piece of evidence.

The agenda that the media should set in the present Nigerian setting should transcend the narrow interests of political gladiators. It should be an agenda to liberate the millions of Nigerian people from the shackles of poverty, underdevelopment and lack of human freedom. The media must deliberately promote the political groups like The Alternative People’s Political Movement led by Professor OmotoyeOlorode which insists that a new Nigeria is possible. The media should have an agenda that will expose the manipulation of facts and violation of the Constitution to cover up the brutalization of our people.  The latest of such cover ups is the official denial of the killing of the unarmed protesters in October 2020.  

ILLEGAL REVIEW OF OKUWOBI PANEL’S FINDINGS ON #ENDSARS PROTESTS

When the Government set up a White Paper committee a fortnight ago, I questioned its legal validity. It was my view that since the Committee is unknown to law, the members were not competent to edit, modify, alter, edit or reject the report of the commission. More so, that the members of the White Paper committee did not have the opportunity of taking evidence from the witnesses who had testified before the commission.” I argued further than that the governor “cannot reject the report, summary of evidence and findings of the Okuwobi Judicial Commission in any material particular.

My submission was anchored on section 15 (2) of the Tribunals of Inquiry Law of Lagos State which provides that the governor may  “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. The executive order of the Governor issued in respect of any finding or recommendation of the Panel has “effect as the judgment of the Lagos State High Court”

But in the case of Williams v Dawodu (1988) 4 NWLR (PT 87) 189, the court annulled the aspect of the law that equated the order may pursuant to the findings of a judicial commission to the judgment of the High Court. I am not unaware that it is the practice of governments to issue a white paper on the report of a commission of inquiry.But since there is no provision for a White Paper under the law the Lagos State Government is bound by the findings and recommendations of the Panel. Therefore, any institution and individual indicted by the commission may wish to approach the High Court to challenge any aspect of the report. Since the White Paper Committee is illegal its findings are of no moment.

CASUALTY FIGURES COMPILED BY LASG

In a bid to discredit the findings of the Lagos State Judicial Panel on Restitution for victims of SARS-Related Abuses and Other Matters the White Paper Committee acted ultra vires by advising the Governor to accept, reject or refer the recommendations of the Panel to the Federal Government. Thus, the State Government arrogantly stated that the claim that nine(9) people died at LTG on October 21, 2020, from gunshots fired by the military are based on assumptions and speculations”. The Government said that the finding of the Panel “is therefore irreconciliable with the evidence of Prof. Obafunwa that only one person died of gunshot wounds at 7:43pm at LTG on 21^st October, 2020”. It is curious to know that the name of the only one person who “died of gunshot” is not contained in the White Paper. Similarly, when the Governor disclosed that 2 protesters were killed he did not name them.

It is pertinent to note that Professor Obafunwa did not say that the bodies of the 2 slain protesters were part of the 99 dead bodies dumped in the morgue. Similarly, the Head of Service who gave evidence on behalf of the State Government did not link the bodies of the 2 protesters with the 3 bodies dumped in the Ikeja morgue. The implication is that the casualty figure compiled by the Lagos State Government in Lekkiis not less than 5. Even though the Government found it convenient to rely on the evidence of Professor Obafunwa that “only one person” was killed the White Paper is silent on the unchallenged evidence of the family members of some protesters that were killed and the 27 victims who were visited in the hospitals by the Governor. How could the White Paper have attempted to discredit the evidence of the three protesters whose legs were amputated after the Governor’s visit?

By insisting that only one person was killed at the Lekki Toll Gate the writers of the White Paper contradicted an earlier statement by Governor BabajideSanwo-Olu that two people were killed following a violent attack on peaceful protesters by Nigerian soldiers. The disclosure was made by the Governor Arise TV on October 22, 2020. In another interview with CNN’s Becky Anderson on October 26, 2020 the governor reiterated that, “Two dead bodies, that is what we have seen from all the morgues, that is what we have seen going to hospitals, that’s what we have seen as a record. In particular, the Governor said that “From the footage that we could see, because there were cameras at that facility. It seems to me that they (the assailants) would be men in military uniform. That’s what the footage shows”.

In expressing regret over the violent attack on the protesters the Governor said “This is the toughest night of our lives as forces beyond our direct control have moved to make dark notes in our history, but we will face it and come out stronger.” The statement of the Governor was well reported by the print and electronic media.  However, the Governor suggested that the Federal Government was responsible when he said that the intervention of the troops was prompted by forces beyond his direct control. The Panel rejected the explanation of the Governor and found that he invited the Nigerian Army to Lagos State before the hierarchy of the Nigerian Army deployed its soldiers to the Lekki Toll Gate on the night of the 20th of October. The Panel noted that there was an attempt to cover up the brutal killing of the 20th of October by the cleaning of the Lekki Toll Gate and the failure to preserve the scene ahead of potential investigations. The Panel blamed the state government of not providing adequate funding to conduct DNA test on some of the corpses recovered from Lekki Toll Gate and other parts of Lagos State where the Army and the police had committed human rights abuses.

The Lagos Concession Company (LCC), an agency of the Lagos State Government was accused of refusing to turn over some useful and vital information as requested by forensic experts engaged by the panel. According to the report, the LCC manipulated the incomplete CCTV video footage of the Lekki Toll Gate on the night of the 20th of October 2020, which it tendered before the panel. The attempt to mislead the Panel and cover up the violent attack on the protesters was exposed in the press statement issued by the LCC on October 21, 2020. In the statement which was tendered and admitted as Exhibit A by the Panel the LCC “STRONGLY CONDEMNS the shooting of peaceful protesters at the Admiralty Circle Toll Plaza yesterday, 20 October, 2020 LCC would NEVER support or condone such unscrupulous act meted out on unarmed protesters. Since the commencement of the protests, LCC has allowed free access to the protesters without any disruption to their activities.”  But the LCC’s representative later appeared at the Panel to say that the soldiers did no shoot the protesters!

THE WAY FORWARD

In justifying the position of the Government the Honourable Attorney-General of Lagos State, Mr. MoyoOnigbanjo SAN said that the Panel did not disclose the identities of the soldiers “who shot them and when they were shot.” For goodness sake, were the protesters expected to ask for the names of the soldiers during the murderous attack? The statement reminds me of the finding of the Kalu Anya Panel that it was an “unknown soldier” that set FelaAnikulapo-Kuti’s house ablaze on February 18, 1978. But in the celebrated case of Chief FunmilayoRansome-Kuti&Ors. v. Attorney-General of the Federation (1985) 1 NWLR (PT 6) 124, the Supreme Court of Nigeria rejected the dubious finding that the house was burnt by an “unknown soldier”. Speaking for the apex court, KayodeEso JSC:

“The immunity attaching to the State in this country is sad. For the learned trial judge who took evidence described the scene that day as ‘hell let loose’ and this he had set out in his analysis of the evidence. He said-

‘It is beyond dispute, of course, that many soldiers, a witness gave the figure of 1,000, surrounded the entire buildings, hawling stones and broken bottles. Many of them got inside the building, set fire to it as well as the generator in the compound’

This is bad. It should not be right that once the actual perpetrators could not be determined, the State, whose soldiers these perpetrators could not be made liable. But then as I said the immunity of the State persisted at the time of the incident.

As it is the 1963 Constitution that governs this case I have made special study of the provisions of that I believe may be applied to exclude this immunity. Section 22 is the closest but then it deals only with determination of rights and talks about fair hearing being within a reasonable time. The complaint here is not that the appellants did not have fair hearing. No provision has helped. Happily for the country, but this does not affect the instant case, section 6 of the 1979 Constitution which vests the judicial powers of the country in the court has to my mind removed this anachronism.”

Even though the Ransome-Kuti family lost the case under the technical ground of rexpotest non peccare (the king can do no wrong) the Nigerian people gained from the decision. Since the Supreme Court held that the State can be sued for the violation of fundamental right the Federal government and its security agencies are regularly dragged before the Federal or State High Court overillegal arrest and detention, extra judicial killing, torture and other human rights abuse of citizens carried out by known and unknown soldiers. As far as the law is concerned, unknown soldiers are agents of the neo-colonial state of Nigeria. Since the Lagos state government has refused to accept the truth pertaining to the tragic incident of October 20, 2020 the victims and the family members of protesters that were killed are entitled to demand for justice in local and international courts.

* Being Remarks By Femi Falana, SAN, at a Town Hall Meeting of the Guild of Editors in Lagos on December 2, 2021