By Femi Falana
At the emergency meeting of the National Economic Council held in Abuja on October 15, 2020 the members unanimously resolved to institute judicial commissions of inquiry to deliver justice for all victims of the dissolved Special Anti-Robbery Squad (SARS) and other police units. The judicial panels to be set up in all the states, would include representatives of youths, students, civil society organisations and would be chaired by a retired judge.
The Council also resolved and directed state governors to immediately establish State-based Special Security and Human Rights Committees to be chaired by the Governors in their States.
The Committees are to supervise the newly formed police tactical units and all other security agencies located in the States. The idea of the Special Security and Human Rights Committees in all States and the FCT is to ensure that police formations and other security agencies in the State consistently protect the human rights of citizens.
As a sequel to the aforementioned resolutions, state governors, have in exercise of the powers vested in them by the Tribunal of Inquiry Laws, instituted Judicial Commissions of Inquiry to probe complaints of human rights abuse and make appropriate recommendations to the governments. The resolutions are perfectly in order as the Tribunal of Inquiry of each State qualifies as an existing law under section 315 of the 1999 Constitution. See Williams v Dawodu (1988) 4 NWLW (PT 87).
It is submitted that by virtue of Section 1 of the Tribunal of Inquiry Law each governor is vested with the power to constitute a tribunal of inquiry to inquire into the conduct of officers or of any chief officer or of the department of the government and related issues including “any matter in respect of which in the opinion an inquiry would be for the public welfare.”
It cannot be disputed that the investigation of police brutality is designed to promote the welfare of the people. Indeed, majority of the allegations of police brutality pertain to extra judicial killing or murder, attempted murder, false imprisonment and assault occasioning harm which are offences created by either the criminal code or penal code applicable in the states.
To that extent, the governors have the power to cause these complaints to be investigated with a view to preventing police brutality in all its ramifications.
Regrettably, in spite of the several decisions of the Supreme Court on the constitutional powers of state governments over law and order including crime control, many lawyers have continued to believe that state governments are appendages of the federal government as was the case under the defunct military junta.
Hence, 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 Abuja, 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.
In fact, in order to institutionalise the observance of human rights in all the states the governors have commendably resolved to establish human rights committees on a permanent basis.
In State v Mathew (2018) 9 NWLR (1625) 399 it was the argument of the respondent that the power to assign a defence counsel to an indigent accused person is the exclusive preserve of the Legal Aid Council. In rejecting the argument the Supreme Court held that notwithstanding the existence of the Legal Aid Act a counsel assigned from the Office of the Public Defender of Ogun State was competent to defend the defendant who had been charged with armed robbery committed in the State.
Having regards to the state of the law on human rights protection in Nigeria the judicial commissions of inquiry set up to investigate allegations of police brutality have the undoubted power to compel the attendance of private persons and public officers whose evidence will be of assistance in the delivery of justice to all victims of human rights abuse traced to members of the disbanded SARS and other police units. However, the proposed State Human Rights Human Rights Committees to be established in the states should not be headed by governors.
For the purpose of independence and impartiality the Committees should be constituted by representatives of credible professional bodies and mass based organisations.