THISDAYonline

The Supreme Court has ruled that Human Rights Violations Investigation Commission (HRVIC), a.k.a Oputa Panel, has no powers to summon witnesses outside the Federal Capital Territory.

In the judgment delivered by Justice Samson U. Uwaifo with the assent of the Chief Justice of Nigeria, Justice Muhammadu Lawal Uwais, Justices Salihu Modibbo Belgore, Idris Legbo Kutigi, Micheal Ekundayo Ogun-dare, Sylvester Umaru Onu and Anthony Ikechukwu Iguh, the court held that the 1999 Constitution made no provision for tribunals of inquiry.

Uwaifo disclosed that unlike the 1963 constitution which made that provision in Item 39 of the Exclusive List and Item 25 of the Concurrent List, the 1999 Constitution is devoid of it, stressing: "It follows that, 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."

The Federal Government had appealed against the Court of Appeal's decision that the law does not back the Human Rights Violations Investigation Commission (HRVIC).

Former military President General Ibrahim Babangida (Rtd.) had gone to court challenging the legality of HRVIC. Also, he wanted an order stopping the Commission from summoning him to give evidence before it.

Babangida was summoned by the Commission to give evidence in relation to the murder of Mr. Dele Giwa, founding Editor-in-Chief of Newswatch Magazine in 1986. The commission had asked him to give evidence on the allegation that he and his security chiefs had a hand in the murder but he spurned the invitations and headed for court challenging the validity of the commission.

The Appeal Court judgment that Oputa Panel cannot summon Babangida compelled the Federal Government to head for the apex court. Before hearing on the matter commenced at the Supreme Court, IBB went to a Federal High Court seeking to stop the government from implementing the Panel's decision as it affects him.

According to IBB's counsel, Chief Chris Uche, the Appellete Court dealt effectively with the constitutional interpretation referred to it by the lower court pursuant to section 295 (2) of the 1999 constitution.

"That section requires that the Court of Appeal gives a decision, not a dry answer and section 328 (1) defines appropriately the meaning of the word 'decision'. Pursuant to section 315, cap 447 (Tribunal of Inquiries Act) Laws 1990 is an existing law, but to qualify as an act of the National Assembly, it must be a matter in which the National Assembly can make laws on and must be brought in conformity with the constitution by appropriate authority which was obviously lacking," said Uche.

On the section conferring compulsive powers on the panel, from where it derived the powers to summon the former military leader, Uche submitted that within the legislative competence of the National Assembly, "no item on the Tribunal of Inquiry is either on the exclusive list or concurrent legislative list and under the present constitution, it is not an item listed as in the 1960 constitution which government mistook to be same as the 1999 constitution.

"The panel was not set up pursuant to Cap. 10 of the African Charter on Human Rights and therefore, the panel is not existing."

He also argued that section 6(6)(1) of the constitution did not expel the jurisdiction of the courts to question the validity of any act that is in conflict with the constitution but that section 315 empowers the courts to declare such panels invalid.

Messrs Tayo Oyetibo and M. Duru, who represented the Federal Government and the Attorney General of the Federation respectively, contended that the Appellate court erred in law when it declared that Oputa panel was illegal.

Oyetibo asserted that by virtue of section 315(4) 9b) of the constitution, every law existing before May 29, 1999 is an existing law and is automatically regarded as an act of the National Assembly adding that it was wrong for the Court of Appeal to have ruled that Cap. 447 are not an act of the national Assembly and that the court has no jurisdiction to give such an answer.

Oyetibo further stated that rather than limit itself to the question referred to it for interpretation, the Court of Appeal went into other extraneous matters.

"The Court of Appeal held that sections 5,10,11 and 12 which deal with compulsive powers of the Tribunal of Inquiry Act, contravened sections 35 and 36 of the constitution which deal with matters on which the National Assembly has no power to legislate.

Mr. Duru adopted Oyetibo's submissions stressing that the Court of Appeal was wrong in declaring the whole law unconstitutional rather then confine itself to matters specifically referred it.

However Uwaifo yesterday held that "the Tribunals of Inquiry Act, 1966 promulgated by the Federal Military Government for the entire Federation under the enabling laws is an existing law pursuant to section 315 of the 1999 Constitution and is deemed to be an Act enacted by the National Assembly for the Federal Capital Territory Abuja only and a law enacted by a State House of Assembly under the residual powers of both legislatures.

"This is because the National Assembly has no power under the 1999 Constitution to enact a general law on tribunals of inquiry in the form of the said Act to have effect throughout the Federation of Nigeria."

He further submitted that the power given to parliament to make laws in regard to tribunals of inquiry as reflected in the Legislative Lists contained in the relevant provisions of the Schedule to the 1963 Constitution [Item 39 of the Exclusive Legislative List and Item 25 of the Concurrent Legislative List], was for whatever reason, denied the National Assembly in both the 1979 and 1999 Constitutions of the Federal Republic of Nigeria.

"Without such constitutional provisions, no valid law can be made, or can exist, standing on its own and of a general nature, to apply throughout the Federation of Nigeria on the strength of which the president may set up a tribunal or commission of inquiry. This is because no law not specifically authorised or backed up in our constitution can be lawfully passed for the Federation of Nigeria by the Federal legislature.

"It is the limits set under relevant provisions of the constitution that define and determine the frontiers of the laws that can be enacted. That is the hallmark of constitutional democratic governance, which is seen as a reflection of the power granted by the people to meet their aspirations, and none else.

"In essence, that means that the National Assembly cannot enact a general law for the establishment of tribunals of inquiry for, and applicable in, the federation of Nigeria. The power to enact such a law has become a residual matter for the states in respect of which the Houses of Assembly can legislate for their respective States by virtue of Section 4(7)(a) of the 1999 constitution, which provides that:

"4(7). The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say -

(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution."

(b) As the Federal Capital Territory (FCT) Abuja is under the jurisdiction of the Federal Government, the constitution of tribunals of inquiry for the territory has accordingly become a residual matter over which the National Assembly can legislate as if the FCT Abuja were a state by virtue of sections4 (4)(b) and 299 of the 1999 Constitution, the provisions of which are as follows:

"4(4). In addition and without prejudice to the powers conferred by subsection (2) of the section, the National Assembly shall have power to make laws with respect to the following matters, that is to say - ......

(c) any matter with respect to which it is empowered to make laws in accordance with the provisions of this constitution.

299. The Provisions of the Constitution shall apply to the Federal capital Territory, Abuja as if it were one of the States of the Federation...."

He asserted, "It has not been shown that the 1966 Act is wholly valid under the 1999 Constitution in the sense that the National Assembly can validly enact it as it is to operate throughout the Federation of Nigeria. Unless that was shown, the Commission cannot be said to be constitutionally empowered for the assignment it was given purportedly under that Act."

He however said the Court of appeal was right in declaring some sections of the Act unconstitutional and invalid "in so far as they purport to empower a tribunal of inquiry to impose a sentence of fine or imprisonment in contravention of sections 35(1)(a) and 36(1) of the 1999 Constitution. But the court was wrong to declare sections 59c), 10 and 11(3) of the Act unconstitutional and invalid."