Lillian Okenwa, Peter Umar-Omale, Bature Umar, Iyefu Adoba And Appolonia Emeanua
15 August 2001
Lagos And Abuja — The much awaited appearance of former military president, General Ibrahim Babangida before the Human Rights Violations Inves-tigation Commission (HRVIC), which is expected to resume sitting in Abuja September 3, may not happen afterall; counsel to the former leader, Alhaji Ibrahim Wali, hinted journalists in Abuja yesterday.
He said this just as the Commission Chairman, Justice Chukwudifu Oputa, paid an unscheduled visit to President Olusegun Obasanjo.
Explaining the circumstances under which the former leader may not appear, Wali told newsmen at a press briefing that there is a historical precedence that provides a solid base for General Babangida to refuse appearance.
According to him, this precedence was set by President Obasanjo himself, when as a retired military Head of State, he failed to appear before a Tribunal of Inquiry of April 1980, which summoned him to account for the alleged loss of N2.8 billion oil money.
Wali said that the Tribunal, headed by Justice Ayo Irikefe, later held that since with respect to Section 161 of the 1963 Constitution, Presidents (Heads of States) and governors have immunity over criminal proceedings instituted or continued against them during their period of office.
He quoted the Irikefe Commission as saying, "it is our view that the evidence now required of him being matters affecting his performance in office as Head of State at that time, such matters being clothed with the immunity he had at that time, it would be odd indeed if we could now as it were, remove this immunity retroactively as it were in order to compel him to testify...."
On this basis therefore, Wali argued that it will not be fair to now compel his client to appear before the panel since the same condition that precluded President Obasanjo from appearing then, also applies to Babangida.
Wali, however, declared further that if and when his client chose to appear, it would be in deference to public opinion and this, he said, will depend on some conditions.
He said that the atmosphere was already prejudiced against Babangida. He gave example of handbills distributed by Chief Gani Fawehinmi, the petitioner in the Dele Giwa case, showing the mangled body of the slain journalist.
He also asserted that his client was not concerned about "victory of might" but "vindication of right."
"I informed the Commission that my client would respond as and when due and required, and within the strict parametric confines of the Commission's orderly proceedings as well as the spirit of the law and the rule of law. This subsumes an enabling environment, which would ensure the protection of their personal dignities, in an atmosphere that guarantees their rights to justice and fair play".
He further explained that by uncondusive atmosphere, he means the entire setting of the Commission where crowds gather to clap and photographers click away. Such, he said, would not be conducive for his client as they would prefer a more conservative set up that would not only respect his person but guarantee his safety.
He recalled that on July 11, 2001, the police had to fire a live warning shot when it appeared that one of the witnesses was on the point of being lynched. A situation, which he said might befall his client especially given that people may have been inflamed by the photo portraying the mangled body of Giwa. Wali affirmed that should the Commission list the matter when it resumes sittings, he would apply that enabling atmosphere be created before his client could show up.
He said although, there is a matter before the Court of Appeal, which is seeking to determine the competence of the Commission to summon his client, it was only decided that he appears on their behalf for the sake of equity and fair play, because the public is watching.
He said he has been appearing before the commission, also in deference to the letter written to the former President by Justice Oputa urging him to show up. And by his appearance, he said, it would be regarded in law that his client has appeared.
He noted that even if his client decides to appear before the commission, the matter had been adjourned indefinitely pending the determination of the matter at the Court of Appeal and slated for September 17 as initially requested by Fawehinmi.
Oputa yesterday paid an unscheduled visit to the Presidential Villa where he held series of meetings with Obasanjo and Chief of Staff Major-General Abdullahi Mohammed (rtd).
Although the commission's chairman declined comments on his mission to the Villa and his discussions with the President, it was gathered that the issue of appearance by the former leaders was central to the deliberations.
Justice Oputa arrived State House at about 1 p.m. in company of two other members of the commission and when pressed for comment, said the visit was private.
On arrival, he went straight to meet with the President and met the Chief of Staff afterwards. Yesterday's visit was the second in recent time, after a similar one shortly before the commission travelled overseas to attend a conference.
Justice Oputa, still insisting that he was in the Villa on a private visit then chatted with journalists:
Journalists: Good afternoon sir, we will like to know your mission to the State House.
Justice Oputa: Oh, talk to him (pointing to the commission's media co-ordinator).
Journalists: Sir, since you are here, we will prefer to talk to you.
Justice Oputa: No comment.
Journalists: We expect to see Generals Babangida and Abdulsalami appearing before your commission when you resume sitting on September 3.
Justice Oputa: This is a private visit.
On Monday, THISDAY reported that Babangida and immediate past Head of State, Gen. Abdulsalami Abubakar, had separately conferred with the Presidency and defence chiefs, in a bid to negotiate a way to respond to the summons of the commission.
The report said the duo pleaded with the Presidency to persuade the Oputa Commission to streamline the proceedings to ensure that the counsels and witnesses will not go beyond their briefs and question them on other issues unrelated to the summon.
"Many lawyers are just waiting for IBB to mount the witness box so that they can thoroughly mess him up. That is not the essence of the commission," the report quoted a Presidency source.
"They want the counsel to ask specific questions relating only to the issue they are testifying in," the source said, adding that the former leaders also want to be assured that Justice Oputa would more rigidly control the proceedings.
The Presidency source pointed out that the panel was not an open trial or confession, adding that if Babangida was put in the box to testify on Dele Giwa, it would be unfair to start asking him questions on the Ejigbo plane crash, for instance.
"If you want to ask questions on June 12, you must have filed in your petition to that effect and not dock IBB for Dele Giwa only to begin to ask him questions on June 12. The questions should have direct bearing on the petition and extraneous questions would have to be over-ruled," he said.
He said that if the Presidency finally assures the Generals of this one protection, they would appear, adding that the idea of their appearing in camera had long been discarded.
The source who also hinted that the Presidency may have spoken to Justice Oputa on the issue, also added that the retired generals wanted assurance that certain human rights groups would not capitalise on their appearance to make a case against them for their possible extradition for trial at the International Court of Justice at The Hague.
The source explained: "If they are indicted, some local human rights groups who are presently searching for damning evidence against the Generals may take them to The Hague. The groups would get international arrest warrant and bundle them like Milosevic (Yugoslavia) to The Hague. And they will cite Ejigbo, Dele Giwa, Mamman Vatsa and so on."
Retired Generals Muham-medu Buhari, Babangida and Abdulsalami have consistently turned down invitations to testify before the Oputa Commission on allegations of human rights violations brought against them.
While Buhari was summoned to testify on his role in the failed extradition/kidnapping attempt of Alhaji Umaru Dikko from the United Kingdom, former military President Babangida was expected to respond to allegations levelled against him in respect of the death by parcel bomb of Newswatch founding Editor-in-Chief, Mr. Dele Giwa.
While Buhari said he would not appear because the commission has no power to entertain cases on events that took place outside the country, Babangida said his appearance will not change anything from what his counsel already told the panel on Giwa's murder.
Abdulsalami was billed to testify on the death of Bashorun M.K.O. Abiola in detention and respond to allegation that he looted the treasury.
Last week, Justice Chukwudifu Oputa indicated that one of the former Heads of State accused of wrong-doings before his panel, has written to the commission, promising to appear before it as soon as he (the head of state) returned to the country.
Justice Oputa said this while speaking at a forum in London organised by the Centre for Democracy and Development.
Although, he did not disclose the name of the Head of State that wrote the letter, indications are that it may be General Abdulsalami. Neither Babangida nor Buhari had been out of the country since the commission commenced its sitting in Abuja, where varying allegations were made against the past leaders.
It was also reported last week that Abdulsalami was on Wednesday sighted at the Defence Headquarters in Abuja. Although he did not speak to the press, unconfirmed reports indicated that he might have visited the defence building to obtain documents that could help in his defence before the commission. The refusal of the three heads of state to appear before the commission has been a subject of raging controversy in the country in the last few months.
President Olusegun Obasanjo had at a recent media briefing advised them to appear to clear their names of the allegations. Also, Senate President, Anyim Pius Anyim, declared that neither the presidency not the Senate had the power to compel the ex-leaders, appearance.
Meanwhile, Senator Idris Abubakar yesterday stated that the commission would end up creating more problems than solutions.
Abubakar who has been a critic of the commission from inception also said the commission lacked the requisite legal backing to force the appearance of the nation's former leaders or any other person because of the limited powers it has.
Making the remarks in a chat with newsmen in Abuja, Abubakar who is the Senate Public Accounts committee chairman, explained that the commission cannot achieve much because it was created by the fiat of the president on the premise of the Tribunals of Inquiry Act which gives it limited powers.
Abubakar said " there is no law establishing the Oputa commission, and that is why I said from day one that this commission will create more problems than solutions because it was created at the fiat of the president. However well intentioned he is, he does not know all. Even if he knows all, he can not do all because the constitution gives the powers to create institutions by law on the National Assembly."
Abubakar said the commission would have been more grounded if the President had sought legal backing for it from the National Assembly by way of a law, which would have given it power to force the appearance of any witness.
He added: " as far as I am concerned there is a fundamental defect in setting up of the commission because the law establishing it did not give them power of amnesty because it did not come through the National Assembly and that much has been conceded by Oputa himself at a press conference."
If the commission was properly established, the senator contended, recent happenings and reports of negotiated appearance of the former heads of states would have been unnecesary, as it portends a dangerous trend, which would lead to the corruption of the entire process.
" I have heard that the former heads of state are negotiating their appearance. I have also heard that Oputa himself has said he will only speak with lawyers and keep them within the parameters of the petition before him and the issues raised, and that is being done on the instruction of President Obasanjo. So, already you can see that you have corrupted the system."
According to Abubakar "the situation now means that the former leaders would be going to the Oputa commission in accordance with the dictates of Obasanjo. So where are we? What use does it serve if they will come only at the mercy of Obasanjo because Obasanjo is kind enough to say you should appear on so and so terms."
Senator Abubakar advised that if the leaders are appearing at all, " they should appear no holds barred and if there is no law, which would compel them to appear, then please allow them to go, the law gives them that protection.
In a related development, Dr. Owens Wiwa, brother to slained Ogoni writer and environmentalist, Ken Saro-Wiwa, has critisised the Oputa panel for mis-handling his brother's case.
Speaking in an interview on the Voice of America (VOA) yesterday, Dr. Owens urged Justice Chukwudifu Oputa and his team to review the case with a view to exonerating the late Saro-Wiwa and the eight others from the unlawful torture and false charges for which they were executed
Similarly, he urged the panel to look thoroughly into the case to avoid any attempt to cover up the injustice done Saro-Wiwa and eight other Ogoni civil rights activists .
Owens who spoke from Canada told the VOA that so far he had noticed a particular pattern in Oputa's handling of the Ogoni case, saying that it differs completely from the way it has handled several other cases of human rights violations brought before it.
He cited examples of the case of the acclaimed winner of the June 12, 1993 presidential elections, the late Chief Moshood Abiola, that of the slained Editor-in-Chief of Newswatch magazine, Dele Giwa, and the case of the coup plotters.
He said in all these cases the panel invited all relevant witnesses and got the necessary information from them to enable it ultimately reach conclusion.
However, he noted that in the case of Saro- Wiwa, the opposite has been the case. He expressed fears that if the panel allows Saro-Wiwa's case to die without calling the witnesses, it could amount to a cover-up.
According to him, it could end up as the cover-up carried out by officials of the late General Sani Abacha military era whom he accused of master-minding Saro-Wiwa's execution.
On the issues of the US$90 million compensation being demanded by Wiwa's family to assuage his death,
Owens said it was communication breakdown between the family and their counsel. He clarified that the family did not at any time ask for compensation.
Speaking further, he said monetary compensation was not the primary objective of the family for bringing Saro-Wiwa's case before the panel. He noted that there had been communication error in the way the monetary compensation was presented to the public, saying "the issue of monetary compensation is secondary."
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