THE TRIBUNAL OF INQUIRY JURISPRUDENCE IN NIGERIA AND ITS EFFECT ON NIGERIA’S DEMOCRACY

The tribunal of inquiry as a legal concept came into existence due to the need to investigate a matter of public significance. Just as companies set up investigative committees to interrogate serious internal issues that have arisen in a bid to have copious knowledge of the facts and decide on the appropriate response(s), tribunals of inquiry seek to undertake a thorough investigation of serious issues of the public that have arisen in order to elicit full facts on the record with possible government action ensuing.

The Tribunal of Inquiry (Evidence) Act of 1921 was introduced and passed in the British Parliament as a result of the Marconi Affair. The Marconi Affair was a British political scandal that broke out in mid-1912 wherein some ministers of the UK Liberal government were accused of using insider information to buy shares in the English Marconi company which was billed to be awarded a government contract. The scandal broke out and a House of Commons select committee was formed which acquitted the ministers of acting otherwise than in good faith. The House of Commons select committee inquiry was also deemed unsatisfactory and this scandal culminated in the enactment of the Tribunal of Inquiry (Evidence) Act 1921 which was in force until it was repealed by the Inquiries Act of 2005.

Nigeria, being a former British colony, inherited this tribunal of inquiry jurisprudence into its political culture—in 1940, an ordinance was enacted empowering the Governor-General to set up commissions of inquiry—but its development in Nigeria post-independence has been convoluted.

TRIBUNAL OF INQUIRY LEGAL REGIME POST INDEPENDENCE

At independence, Nigeria got a new constitution (1960 Constitution) which made Nigeria a federation between the central government and the regional governments under a parliamentary system of government as was obtainable in England. Under the 1960 Constitution, the powers of parliament to make laws were given by section 64. The schedule to the constitution was divided into Parts I, II, and III. Part I contained 44 items and constituted the Exclusive Legislative List, Part II containing 28 items constituted the Concurrent Legislative List; Part III contained two paragraphs under the heading ‘Interpretation’ which was common to both Parts I and II and addressed incidental and supplementary matters.

Item 44 of the Exclusive Legislative List and Item 28 of the Concurrent Legislative List, both the last item on the respective lists, addressed incidental and supplementary matters. Item 44 provides:

“Any matter that is incidental or supplementary -

(a) to any matter referred to elsewhere in this list;?or

(b) to the discharge by the Government of the Federation or any officer, court or authority of the Federation of any function conferred by this Constitution.”

Paragraph 1 of Part III (Interpretation) provides:

In this Schedule references to incidental and?supplementary matters include, without prejudice to?their generality -

????(a)offences;

????(b)the jurisdiction, powers, practice and procedure of courts of law;

????(c)the compulsory acquisition and tenure of land; and

????(d)the establishment and regulation of tribunals of?enquiry."

As such, whilst the power to establish tribunals of inquiry was provided under the 1960 Constitution both in the Exclusive and Concurrent Legislative Lists, it was not made a subject item but an incidental or supplementary matter of both Lists.

Pursuant to this constitutional arrangement, the Commissions and Tribunals of Inquiry Act 1961 (CTIA) was enacted by the federal parliament in Lagos, purporting to confer a general power on the Prime Minister to undertake the establishment of tribunals of inquiry into any matter within federal competence. When in accordance with the CTIA Prime Minister Tafawa Balewa set up a tribunal of inquiry to inquire into the affairs of the National Bank of Nigeria, litigation ensued which ended up before the Judicial Committee of the Privy Council in the case reported as Balewa?v.?Doherty?(1963) 1 WLR 949, (1963) 2 SCNLR 15 5. The Privy Council in its judgment, delivered by Lord Devlin, held that the blanket power given to the Prime Minister to authorise inquiries into matters within federal competence was improper because Item 44 of the Exclusive Legislative List was not wide enough, being incidental and supplementary, to authorise inquiries into subjects about which the Parliament had competence to legislate, unless there was actual legislation in existence or a function of the Federal Government actually being discharged under the law relevant to and connected with the inquiry. In other words, if the federal parliament at the time (as opposed to the Prime Minister exercising his power under the CTIA) established, via legislation, a tribunal of inquiry pursuant to the Banking Ordinance 1958 (Item 43 of the Exclusive Legislative List empowered the federal parliament to make laws with respect to banks and banking) to look into the affairs of the National Bank of Nigeria, the legislation creating the tribunal of inquiry and the tribunal of inquiry would have been proper as they would be incidental and supplementary to a subject in Item 43 of the Exclusive Legislative List.

Lord Devlin noted that it was possible for the Constitution to empower Parliament to establish a tribunal of inquiry into any matter about which it could legislate but that the obvious way to do so would be to add to the end of each Legislative List an item such as ‘the establishment and regulation of tribunals of inquiry into any of the above matters’. The advice of Lord Devlin was definitely taken into consideration with the drafting of Nigeria’s 1963 Constitution wherein Item 39 on the Exclusive Legislative List and Item 25 of the Concurrent Legislative List read “Tribunals of inquiry with respect to all or any of the matters mentioned elsewhere in this list”. As such, under the 1963 Constitution, Parliament could enact a general Act to empower the appropriate authority (be it Prime Minister or Premier of a region) to institute a commission/tribunal of inquiry into any matter mentioned in both the Exclusive and Concurrent Legislative Lists.

Surprisingly, no general legislation on commissions/tribunals of inquiry was enacted in relation to the 1963 Constitution until Nigeria’s independent democratic dispensation was interrupted and supplanted by military rule. The military regime sought to exploit the use of tribunals of inquiry by enacting Tribunal of Inquiry Decree No. 41 of 1966 (TID). Pursuant to the TID, the military government established tribunals of inquiry to look into specific situations of public importance; such as, ‘The Tribunal of Enquiry into Examination Leakages’ established by Lt. General Olusegun Obasanjo’s led Federal Military Government via an instrument dated 29 June 1977. In typical military arbitrary fashion, however, the power to establish tribunals of inquiry under the TID was too wide. Section 1 of the TID allowed the head of the military government to establish a tribunal to inquire ‘into any matter or thing or into the conduct or affairs of any person in respect of which in his opinion an inquiry would be for the public welfare…’.

With the return to democracy in 1999, a new constitution (1999 Constitution) came into force. Under Section 315 of the 1999 Constitution, it is provided that existing laws at the time of the coming into force of the constitution continued to have effect with such modifications necessary to bring them into conformity with the constitution. As such, the TID was deemed the Tribunal of Inquiry Act (TIA), as if made by the federal legislature. Ominously, the 1999 Constitution (like the 1979 Constitution when Nigeria had a democratic interregnum during its decades of military rule) did not include in the Exclusive Legislative List (in Part 1 of the Second Schedule) or the Concurrent Legislate List (in Part II of the Second Schedule) an item for “Tribunals of inquiry with respect to all or any of the matters mentioned elsewhere in this list” nor did it make it an incidental or supplementary matter in the fashion of the 1960 Constitution.

Upon election as President of Nigeria in 1999, President Olusegun Obasanjo set up the Human Rights Violations Investigation Commission (‘HRVIC’ or ‘Oputa panel’) in 1999 to investigate human rights abuses committed between 1st January 1994 to 29th May 1999 during the erstwhile military regime. The HRVIC was set up pursuant to the TIA and kickstarted proceedings, called for petitions, and began taking witness testimony. When the HRVIC sought to compel the attendance of a former military head of state, General Ibrahim Babangida; Halilu Akilu, Director of Military Intelligence under General Babangida; and Brigadier-General Tunde Togun (Rtd), Deputy of Director of State Security Services,? pursuant to a petition (accusing them of the murder of Dele Giwa, the Nigerian journalist brutally murdered by a parcel bomb) filed by Chief Gani Fawehinmi, the three approached the court of law, alleging the unconstitutionality of provisions of the TIA. The case, reported as Fawehinmi v. Babangida [2003] NWLR (PT 808) 604, came before the Supreme Court of Nigeria (SCN), before a full panel of 7 seven justices as the case involved constitutional issues.

The SCN panel considered the constitutionality of the TIA and in a well-reasoned leading judgment delivered by Uwaifo J.S.C held that with the absence of an item in the Exclusive and Concurrent Legislative lists of the 1999 Constitution empowering the legislature to make a general law for the creation of tribunals of inquiry, the federal legislature (The National Assembly) could not make a valid law to apply throughout the Federation of Nigerian on the strength of which the President may set up a tribunal or commission of inquiry to look into any matter of public significance. As such, the TIA, deemed an existing federal statute by virtue of section 315 of the constitution, had no constitutional basis under the 1999 Constitution and was invalid as it related to the federation and only applied to the Federal Capital Territory (FCT) over which The National Assembly had power to legislate pursuant to sections 4(4) and 299 of the 1999 Constitution. Also, with the power to make a law to create a tribunal of inquiry outside the Exclusive and Concurrent legislative competence, it became a residual matter for the States in respect of which the respective Houses of Assembly of states could legislative in line with section 4(7)(a) of the 1999 Constitution.

The implication of the SCN’s ruling in Fawehinmi v. Babangida was that the creation of the HRVIC was improper as the enabling statute, the TIA, was unconstitutional. As such, the entire work of the HRVIC was in futility and its report never saw the light of the day. On the other hand, state Houses of Assembly have, in display of their residual legislative power, enacted tribunal of inquiry laws empowering the governor to institute tribunals/commissions of inquiry to look into matters of public significance. For instance, Lagos state has in force the Tribunal of Inquiry Law, Cap T7, Laws of Lagos State 2015 under which Governor Babajide Sanwo-olu created the ‘Lagos State Judicial Panel of Inquiry on Restitution for Victims of SARS Related Abuses and Other Matters’ (#EndSARS Panel) in the aftermath of the October 2020 #EndSARS protests and Lekki Massacre.

As it stands, the Federal Government of Nigeria cannot create a tribunal of inquiry to investigate a national issue that affects the entire Nigerian public; it cannot create a tribunal of inquiry to investigate the COVID-19 palliative scandal, to investigate the conduct of the Athletics Federation of Nigeria in the shambolic outing of the Nigerian delegation at the Paris 2024 Olympics, corruption scandals in the Central Bank of Nigeria, the scandal of the scheme of some Nigerian officials to demand a non-refundable N688,000 payment to obtain a Document Verification Number before applying for a UAE visa e.t.c., simply because the drafters of the 1999 Constitution omitted to include an item for “Tribunals of inquiry with respect to all or any of the matters mentioned elsewhere in this list” in the Exclusive and Concurrent Legislative lists in the fashion of 1963 Constitution.

Since the Fawehinmi v. Babangida decision of the SCN pronounced in 2003, there have been four alteration acts amending the Constitution, with over 50 amendments of provisions of the 1999 constitution, yet the National Assembly spearheading the constitutional amendment has not deemed it fit to include “Tribunals of inquiry with respect to all or any of the matters mentioned elsewhere in this list” as an item in the Exclusive and Concurrent Legislative Lists to permit the enactment of a Tribunal of Inquiry Act for the federation which would bring about public scrutiny into the affairs/activities of government and government agencies, thereby fostering transparency in our democracy. Our democracy has suffered from an utter lack of transparency in government, no thanks to the inability to constitute national tribunals of inquiry but it appears this lack of transparency is by deliberate design.

Izuchukwu Temilade Nwagbara is a dispute resolution practitioner called to the Nigerian Bar. He is a co-head of the British Nigerian Law Forum: Junior Lawyers Division (BNLF:JLD). He is an international law researcher/practitioner. He is an arbitration enthusiast and a member of Young AFSA (Arbitration Foundation of Southern Africa). He also consults for non-Nigerian lawyers on Nigerian law and can be reached via email at [email protected].