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Weighing constitutionality of states investigating federal agencies

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About eight months ago, the National Economic Council (NEC) headed by Vice President, Professor Yemi Osinbajo (SAN) directed each state of the federation and the Federal Capital Territory (FCT), Abuja, to establish a judicial panel of inquiry, to investigate cases of police brutality and other forms of extra-judicial killings, with a view to redressing proved cases of injustice against victims.

The youths thereafter added to their list of demands. They demanded immediate release of all arrested protesters; justice for all deceased victims of police brutality and appropriate compensations for their families; and a setting up of an independent body to oversee the investigation and prosecution of all reported police misconducts within 10 days and carrying out of the psychological evaluation of all operatives of the disbanded SARS, before redeploying them for any policing task. The protesters further demanded that the government should increase the salary of police personnel and ensure that they are adequately compensated for any eventuality that they suffer in the course of protecting the life and property of citizens.

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The establishment of these judicial panels of inquiry at the state levels to address alleged cases of police brutality and inhuman treatment was fueled by the #EndSARS protests, which rocked the country between October 8 and 22, 2020.

The protests saw Nigerian youths take to the streets in different parts of the country, calling for the disbandment of the police Special Anti-Robbery Squad (SARS). Security agencies allegedly clamped down on them, resulting in arrests and fatal casualties on the side of the protesters as well as security personnel.

Legal experts have expressed opinions on the legality or otherwise of these panels, set up by states to probe the police and army, which are federal government agencies, wondering if it will not amount to a futile exercise.

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According to a human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana, governors did not breach the law by setting up judicial panels of inquiry. He pointed out that the setting up of panels of inquiry were not items on the exclusive or concurrent list as contained in the Constitution.

Citing Supreme Court cases, the human rights lawyer argued that the circumstances leading to the setting up of the panels were “residual matter within the exclusive legislative competence of state governments”.

He said: “Sequel to the aforementioned resolutions, state governors have, in the 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).”

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Falana was explicit on the matter and submitted that by 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 the department of the government and related issues.

“Given 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.”

Falana insisted that the panel had the powers to summon police or military personnel to testify before it and was constitutionally backed.

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Other lawyers apparently toe the same line as the Senior Advocate of Nigeria. Most of them pointed out the constitutional validity of the panels.

An Abuja-based lawyer, Omale Ajonye, said it is constitutional for states to set up such a probe panels to investigate the police. He explained that the resolution to set up the panels was in order and in line with the Constitution because the Constitution empowers the states to establish a tribunal and commission of inquiry. He specifically cited section 315 of the 1999 constitution (as amended) to back his assertion.

He said: “The states have the powers to inaugurate/empower panels to investigate breaches of the law or abuse of human rights by security agencies backed by the state Houses of Assembly.” Ajonye, in addition, explained that the governors of states are the Chief Security Officers of their respective states. Therefore, it is constitutional for them to probe activities of the police in their states, notwithstanding and that the police is a federal institution.

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Also, Monday Ikpe, an Abuja-based legal practitioner, believes that it is constitutional for states to set up panels to investigate the activities of the police. He stated that the states are empowered by the Constitution to constitute panels to investigate activities of the police and its officials in the conduct of their statutory duties. In his argument, he agrees that such panels constituted by states did not violate any known provision of the Nigerian Constitution.

Another lawyer, Peter Abah said the Tribunal Laws that vested the state with the powers to set tribunals equally empowered them to constitute panels to investigate activities of the police and other departments of government.

His cited section 315 of the Constitution. Abah explained that section 315 provides for a panel of inquiry and any other additional laws that may provide an additional impetus for the state in constituting such panels.

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He said: “By the provisions of the Tribunal of Enquiry Law, each state governor is vested with the power to constitute a tribunal of inquiry to investigate the conduct of police and other departments of government.”

But another lawyer, who would not want his name mentioned, argued that setting up the panel by states was unconstitutional and violates the laws that govern the administration of the police. He said such panels violated the provisions of section 241(1)(2)(a) and Item 45, Part 1, First Schedule to the Constitution, and Section 21 of the Tribunals of Inquiry Act.

The lawyer argued that by the provisions of 241(1)(2)(a) and Item 45, Part 1, First Schedule to the Nigerian Constitution, only the Federal Government had exclusive power to organise, control, and administer the activities of the Police.

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While the argument for and against constitutionality lingered, some judicial observers said the absence of a uniform deadline in turning in reports might affect implementation.

They said implementation of the reports with regard to prosecuting indicted officers might be hampered by lack of uniformity across the states. Findings by The Guardian showed that while some states are turning in their reports early enough, the exercise is still ongoing in other states.

VP Osinbajo had urged states where the panels are still sitting to send interim reports, which can be used to measure their progress. In a recent statement by his media aide, Laolu Akande, the VP said reports are being received ahead of a Council meeting where presentations would be made, covering states where the panels have concluded their work and those that are still sitting.

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