#EndSARS Panel – White Paper Unknown To Nigerian Law And Cannot Alter Or Deviate From The Report Of A Judicial Panel Of Inquiry

By Pelumi Olajengbesi Esq.

Let me start by sympathizing with Governor Sanwolu of Lagos State as he makes more error in his political attempt to remain loved by the people of Lagos State. With the election season so close at hand, it is little wonder that Mr. Governor has had his hand full trying to micro-manage the indicting reports of the panel constituted by the Lagos State Government itself while trying not to appear to be undermining the course for justice.

But with the Lagos State #ENDSARS Panel and the White Paper Committee Report stirring up a mixed hailstorm of reactions from the professional and lay public, the place of informed opinion on the legalities, technicalities, possibilities and probabilities deriving therefrom has become pertinent.

In sharing my two-cent insight on a discourse that may some-day inform public policy or even legislation on such matters, I want to express the hope that eventual government action is led on by a commitment to doing a form of justice that can be seen and felt; for it is the search for justice that birthed the Judicial Panels of Inquiry.

Without further ado, let it be categorically stated that the concept of white paper now being given premium attention as a precursor to the implementation of the Judicial Panel of Inquiry’s report is unknown to Nigerian Law. It is alien and has no force of law. It is not a document known to have any authority that can be enforced in law and is merely an administrative medium for conveying the decision or position of government on certain issues.

Therefore, the White Paper committee setup by the Lagos State Governor lacked the legal capacity to review the report of a panel set up pursuant to the Tribunal of Inquiry Law of Lagos State. The committee lacked the legal competence to review, edit, modify, reject or alter the report of the panel. What we therefore have is just the report of the panel and nothing more before or after it.

The supreme court has opined in Momoh v. Umoru (2011) 15 NWLR (PT. 1270) 217 that the report of a panel of inquiry is valid and could constitutes res judicata in a matter and, when a party is dissatisfied with the report, such a person may approach a High Court for redress.

The implication of this is that the law only allow for review of such by a high court and not another committee without the force of law. The only available Avenue to review the report of the Panel is the court of law. Reviewing the findings of a properly constituted panel by an unknown White Paper committee is law turned upside down and akin to taking away the authority of the makers of the report and the report.

For bureaucratic purposes in the context of the Lagos State #EndSars Panel, the necessity of a White Paper may be conceded but only where same solely puts forth action points for the Lagos State government to gazette and execute as a public policy that could go on to pre-empt being legislated on. That is, the sole recommendations of the Lagos #ENDSARS Panel would inform step-by-step actions to be documented in the White Paper to be officially undertaken by the Lagos State Government to remedy the ills taken into account by the Panel and present practical opportunities for redress, restitution or remedy to be made.

The White Paper Committee therefore cannot and should not have tampered with the conclusions or findings that informed the recommendations by the panel. That is, having never sat in receipt of evidences or hearings like the Panel did, the White Paper Committee had no locus in law or convention to question or reject the conclusions or findings of the #ENDSARS Panel. Hence, constituting the White Paper committee was merely a political exercise in time wasting.

Fundamentally, it may be difficult to have a perfect report given that the leaked reports indicated findings that should have been established beyond the scale of a balance of probability. This can only be properly reviewed when the entire original report is in public domain and properly subject to a High Court.

Whereas certain questions are being asked of the legality of the State Panels of Judiciary Inquiry, particularly its constitutionality and terms of reference; it is not the practice of the legal profession to approbate and reprobate. On the face of it, these panels were set up on the behest of the Federal Government by the National Economic Council and, the states constituted the panels pursuant to the various states’ Tribunal of Inquiry Laws. Lawyers, I vouchsafe, only appear before panels whose constituting authority they are sure of.

However, the question about the term of reference which also gives jurisdiction to the panel to inquire into the dealings of the Nigeria Police and Army is debatable safe for the fact that the panel was given further jurisdictional competence by the Military and the Police by their wilful participation in the entire process. Arguments against its constitutionality when its findings do not clearly put government in good light is simply legal mischief and an affront on justice.

For the purpose of legal argument, lets note Per Uwais, CJN’s position in Fawehinmi v Babaginda where he held, inter alia 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. Although, the Tribunals of Inquiry Act is an “existing law,” its application is limited and has no general application”. Thus the omnibus provisions of states’ laws on judicial panels which allow inquiry into any matter that promotes public good clothe the panels with automatic legality.

That said, we must understand that at every point, our laws must seek justice. The very expectation of the common man is justice for the victims which invariably means justice for the rule of law. It is not debatable that citizens should not be subjected to brutalization and undignified treatment in a democratic society as that offends the spirit of human dignity and is tantamount to violation of human rights as enshrined under the law.

Consequently, Government is expected to live up to the expectation of justice in the circumstance as anything short of that will not only empowers the perpetrators to continue with the unlawful act but may equally expose the country to further public demonstrations whether now or in the nearest future.

As a concerned individual and public interest lawyer, I must express the hope that the Lagos State Government seize on this opportune moment in history to do right by the public and not jettison the recommendations of its #ENDSARS Panel under any guise. There are greater issues at stake such as the matter of enforcing fundamental human rights and justifying invested public trusts and interest both of which override all political considerations.

Pelumi Olajengbesi Esq.,is a Managing Partner at Law Corridor