Monday, January 3, 2005

To forgive and to reconcile is not necessarily to deny justice, says Oputa

Summary, conclusions and recommendations of the Human Rights Violations Investigations Commission (HRVIC) including the foreword by the chairman, Hon. Justice Chukwudifu A. Oputa CFR, Justice Emeritus Supreme Court of Nigeria as presented to the President, Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria Chief Olusegun Obasanjo in May 2002

FOREWORD

advertisement

"Ill fares the land, to hast'ning ill a prey, where wealth accumulates, and men decay... Oliver Goldsmith The Deserted Village

THIS was the lament of Oliver Goldsmith about "The deserted Villages." In a sense, this Report is also a lament. However, unlike Oliver Goldsmith's The Deserted Village, this particular lament is a lament, not about the disappearance of village life but about the aftermath of military rule in Nigeria and the consequential disappearance and violations of human rights and essential freedoms of Nigerians. Like Oliver Goldsmith, I can then say:
Ill fares the land, to hast'ning ill a prey, where might tramples over right, And essential freedoms Decay.

1.2 For much the greater part of the period covered by this Report. Nigeria was under military rule. During this period, most of our rulers' principal motivation and pre-occupation were not service to country but the accumulation of wealth and personal gratification.

1.3 This personal accumulation of wealth led to the decay of our society. Public and private morality reached its nadir; and the casualties included human dignity, human rights and our basic freedoms. We also experienced institutional and structural decay.

1.4 This Report has attempted to provide an over-view of the extent of our moral, physical and institutional decay under military rule. The proscription and circumscription of our human rights and freedoms under military rule were symptomatic of a much serious malaise, the departure from constitutional or limited government and with it the absence of accountability and transparency in public life. This was the ultimate decay involving the personalisation of the governmental process around the military ruler.

1.5 The return to democratic civilian rule on 29 May 1999 provided the opportunity for us to rise above this decay, to break the silence of the past and to forge ahead, determined to lay to rest the ghost of this dark and painful period in our national history.

1.6 But we must be prepared to confront this history, if we are to forge ahead. We need to understand it, even if it means asking unpleasant questions and offering blunt answers. Where did we make the wrong turn? Who was responsible for what? What opportunities did we miss and why? What are the major lessons to be learnt? What do we now need to do to put the past behind us and to look to the future with renewed hope and patriotic zeal? What are the basic conditions for us to effect national catharsis?
1.7 This is what we have attempt to do in this Report. We have tried to be faithful to our terms of reference and to our mandate, both of which imposed on us the obligation "to review the past," and to map out or indicate pathways to enable us a people "redress the injustices of the past; (and) to prevent and forestall future violations..."
1.8 But it was not an easy task. We had to overcome serious obstacles and constraints some institutional, some organisational, some legal, some cultural, some political, some logistical and financial and some inevitably arising from the very nature of a truth commission like ours. Nonetheless, undaunted and unfazed, we were determined to succeed as we trudged on albeit indefatigably, in the knowledge that ours was a historic mission.

1.9 We have to confront and resolve a basic paradox in looking at the past to forget, we have to remember. But remembering the past is one thing and living in the past is another thing. To live in the past is to be a slave to revenge, to retributive recrimination. We must rise above and beyond the pettiness and the social and political paralysis that revenge breeds.

1.10 We have to remember in order to forget, to learn lessons and to forge ahead. In other words, we must known our terminus a quo in order to arrive at our terminus ad quem. We must build on our bitter and sad past.

1.11 This has been the raison d'etre as well as the leitmotif of our work at the Commission. If this Report contributes, even in the smallest way, to a national risorgimento, then our work will not have been in vain.

1.12 We, therefore, hope that the Report will offer a credible perspective on our past, while also serving as a road map for our future. We do not claim that we have said all there is to be said about our past and our future. Much, perhaps, remains to be said, and will be said by present and future chroniclers. This as it should be, if only because history is forever unfolding itself, as new evidence arises, as new interpretations confront old ones and as the ineluctable march of science brings forth new tools for unscrambling the past.

1.13 The following apt observation by the Most Revd. D.M. Tutu. Chairperson of the Truth and Reconciliation Commission of South Africa in the Foreword to his Commission's Report, at paragraphs 17-19 of Volume 1 of the Report, underscores this point so well that I quote it extenso.

"The past.. is another country. The way its stories are told and the way they are heard change as they years go by. The spotlight gyrates, exposing old lies and illuminating new truths. As a fuller picture emerges, a new piece of the jigsaw of our past settles into place.

Inevitably, evidence and information about our past will continue to emerge, as indeed they must. Report of this Commission will now take its place in the historical landscape of which future generations will try to make sense searching for clues that lead, endlessly, to a truth that will, in the very nature of things, never be fully revealed."
It has been the privilege of this Commission to explore a part of that landscape and to represent the truths that emerged in the process. And we have tried, in whatever way we could, to weave into this truth about our past some essential lessons for the people of this country. Because the future, too, is another country. And we can do no more than lay at its feet the small wisdom we have been able to garner out of our present experience.

1.14 A word on our approach to our mandate is pertinent here. In scratching for the truth about our past, we tried to adhered scrupulously to the requirements of due process and fair hearing and to the canons of historical and cultural scholarship.

1.15 We provided the platform, through our Public Hearings and Special Sessions, held across the various geo-political zones of the country, for alleged victims and alleged perpetrators, of human rights abuses and violations to bare their minds in public. But we were careful not to take their accounts at their face value. We had to devise means of corroborating them.

1.16 We wish to underscore this point, if only to disabuse the minds of critics who accused the Commission of re-opening old wounds by providing this platform. We realise that this is partly a matter of methodology and perspective, regarding how we should unscramble and come to terms with the past.

1.17 We firmly reject the view that we should simply forget the past. As I have already observed in this Foreword, we need to talk about the past, no matter how painful, in order to move ahead and because of the cathartic or cleansing and purifying possibilities it offers, at the individual pyscho-cultural level and at the wider community and national levels.

1.18 This is not to deny that public hearings are inherently problematic. For example, during our public hearings in Abuja, Lagos and Port Harcourt, alleged perpetrators of human rights abuses and violations blatantly denied the human rights abuses and violations alleged against them by their victims and families.

1.19 To this extent, it was not possible or easy to extract from some alleged perpetrators the measure of remorse and plea for forgiveness so vital for forgiveness and reconciliation to take place.

1.20 Yet, all is not lost. Public Hearings still have their redeeming aspects. Thus, there are denials, which make no difference to the facts. When so many witnesses from different ethnic and geographical backgrounds alleged unlawful arrests, illegal detentions and torture against the same set of persons or security agencies, such witnesses cannot all be lying and the alleged perpetrators cannot all be witnesses of truth. In such situations, the Commission had to read between the lines.

1.21 And, as one witness pointed out, it takes more than human courage to admit one's wrong doing. And so the Commission found out!
1.22 In trying to discover the truth, we commissioned research teams of lawyers, historians and social scientists to write background papers for the Commission on various aspects of our mandate and terms of reference. The research reports submitted to us have been useful in the preparation of this Report.

Let me now turn briefly to some of the important issues raised and discussed at length in the Report.

Truth: Reconciliation and Justice
1.23 Public perceptions and expectations about the work and mandate of the Commission varied enormously. But a common denominator was the concern with Justice. In some cases, Justice was equated with revenge.

1.24 This is understandable and is not unique to Nigeria. Indeed as is clear from our comparative analyses of the work of truth commissions in Argentina, Chile, Guatemala, South Africa and Uganda in Volume 2 and Volume 5 of this Report, and society that has gone through the trauma of unbridled human rights violations and abuses is invariably confronted with a choice among two options (a) revenge and/or Nuremberg-type trials: and (b) Forgiveness and Reconciliation.

1.25 Which option is chosen will depend on what each truth commission is set up to accomplish. Indeed, of the five truth commission refereed to above and analysed in volume 2 and Volume 5 of this Report, it was only in the case of Argentina that there were criminal prosecutions of members of the military junta and their collaborators for gross human rights abuses. In the other four cases; Chile, Guatemala, South Africa and Uganda, the aim was for people to know what happened in their respective countries during the dark days of military rule.

1.26 Which option should Nigeria choose? The answer is clear from the Commission's mandate, its terms of reference and the President's Address at the inauguration of the Commission: Forgiveness and Reconciliation. Reconciliation was the key world in the President's Address. Our quo warrantor is the search for this reconciliation.

1.27 To forgive and to reconcile is not necessarily to deny justice. We should not confuse or conflate justice with prosecution and with criminal or retributive justice. Viewed in the broader perspective of legal theory or jurisprudence as well as moral and political philosophy, reconciliation represents not the antithesis but the triumph of justice.

1.28 Nigeria now has a nascent and fledgling democracy, with all its imperfections and teething problems. Managing the transition from military to democratic civilian rule requires deft and dextrous navigational skill to avoid land mines and treacherous waters. To manage the transition successfully and to consolidate it may require that we sacrifice criminal justice for the higher moral imperative of reconciliation and to avoid the trauma, anguish and pain criminal prosecution will give rise to.

1.29 In short, Recrimination and Revenge are, have always been and will forever be, poor chisels with which to hue out of stones of reconciliation, unity and peace.

1.30 If we try, we can achieve reconciliation and the onus is on all of us to try and do so. We are encouraged in this respect by our own experience on the field during the Public hearings in reconciling warring communities. One or two examples will suffice.

1.31 During our sessions in Lagos, Lagos State, we reconciled the quarrelling communities of Maroko Village. We also recorded our first major break-through when the warring Ife and Modakeke communities in Osun State signed a Memorandum of Understanding and a Joint Declaration (see appendix to the report pledging to live in peace and harmony and to adopt only peaceful means in pursuing their respective rights and entitlements. It was unfortunate that the media did not give the Ife/Modakeke reconciliation the prominence it deserved.

1.32 During our session in Port Harcourt, Rivers State, the Commission succeeded in brokering a Peace Accord among the warring factions and groups in Ogoniland. In particular, we managed to unite and amalgamate the Ogoni Four and the Ogoni Nine into the Ogoni thirteen. As the New Nigerian Editorial of Friday, 16th February 2001 observed, "The Peace accord signed by the warring factions in Ogoniland... will go down in the socio-political development of this country as one of the landmark achievements of the Human Rights Violations Investigation Commission."
1.33 While I do not wish to over-dramatise or generalise from these examples, what needs emphasis is that unless we try, and try, we cannot even start the long journey to national reconciliation, and maintain its momentum. The flashpoints of communal unrests in our country constitute albatrosses around our necks. Let us with the crossbow of the Commission shoot down each albatross in the interest of the peace and unity of our country and for the sake of the survival of our nascent democracy. Let us all adhere to the message of our 1960 national anthem:
"...Though tribes and tongues may differ, in brotherhood we stand... Nigerians all"
1.34 The President's Address at the inauguration of the Commission made repeated references to our Nation; Our Land; and Our country. These references presuppose a common citizenship and the existential reality of an historical as opposed to a geographical entity called Nigeria.

1.35 Yet Petition N. 1648 submitted to the commission by Oha-na-eze Ndigbo and the responses to it by the Arewa Consultative Forum, the Joint Action Committee on the Middle Belt, the Afenifere, the South-South and the Government of Rivers State, Ogbakor-Ikwere Convention provide telling illustration of how divided we are as a country and of how suspicious and afraid we are of one another.

1.36 What is also clear from this is that the various ethno-communal groups in the country, including the major ones, complain of marginalisation in the scheme of things.

1.37 I cannot address the issue of citizenship and marginalisation in this foreword other than to observe that they are central to the consideration of human rights as group, ethno-cultural, ethno-religious or collective rights as well as to the foundations of federalism in the country, going as far back as the mid-1940s and the fears of domination expressed by minority ethnic groups in the penultimate years of the decolonisation process in our country.

1.38 As one of our search terms pointed out, quite correctly, our national experience with federalism shows that the problem of marginalisation is at the bottom of minority ethnic group fears of the curtailment or violation of substantive human rights-the right to self-determination, the rights, especially the right to equitable participation in the cultural, economic and political life of the country.

1.39 Under simple majoritarian, first past the post competitive democratic electoral processes, and much more so under authoritarian regimes ethnic minorities all too easily find themselves excluded by the structure of power and the rules of the electoral process, making them less competitive and denying them access to the State and its enormous patronage.

1.40 A refreshing and confidence building fall-out from the work of our Commission is the raising of the issues of minority rights as a core dimension of gross human rights violations and bringing it on the agenda of national debate, in this way, such public consciousness may engender well-thought out remedial public policies and constitutional guarantee of minority rights, thereby facilitating national reconciliation.

1.41 These interrelated citizenship aspects of our constitutional and political history-their origins and trajectories, and how best to confront them at the constitutional and policy levels are extensively covered in Chapters Two and Three of Volume One, and in volumes Three and Seven.

1.42 I only wish to observed here that we need to distinguish between marginality, which is a self imposed constraint to full citizenship participation, and marginalisation, which is imposed from the outside by wielders of political and economic power and its therefore historically deep-rooted and structurally determined.

1.43 While marginality can be redressed by affirmative type action, consistent with the federal character clauses of the 1999 Constitution of the Federal Republic of Nigeria, the problem of marginalisation is best solved by the political restructuring of our federal system of government, underlined by equitable and fair resource allocation and distribution.

Professionalism, loyalty and the cult of the head of state
1.44 The military is a great and ancient profession, which requires appropriate demeanour and exemplary standard of conduct, encapsulated in the expression professionalism. Yet professionalism in the military, as was clear in various testimonies before us, even by senior military officers, and as established in some of the Volumes of this Report, particularly Volumes Four and Five, has been a casualty of military rule in the country, further evidence of the institutional decay I referred to earlier in this Foreword to the Report.

1.45 One unfortunate dimension of this decay is what I refer to as the cult of the Head of State. If and when the Head of State is elevated to the State and made coterminous with the State, then the cult of the head of State is created. The personal ambitions of the Head of State, his or her fears and apprehensions; his or her enemies, real or imagined, become matters of State interest and concern, deserving State intervention and state protection, and as borne out by the evidence before necessitating State sponsored assassinations, murders and "disappearances."
1.46 Some examples in testimonies before us of this conflation of the State with the persona of the Head of State are pertinent.

1.47 In this evidence before the Commission, Major Al-Mustapha emphasised that he had subscribed to an oath "to protect the Head of State and his family as well as the Seat of Government, even if this calls for my making the supreme sacrifice." General Sabo also said in his evidence that the Head of State is but an extension of the State.

1.48 These are troubling menacing views, which if concretised and carried to their logical conclusion may create practical difficulties. There must be a difference between the state and the Head of State. The Head of State is but a functionary of the State, and not the state itself. This is made clear in the Presidential Oath in the seventh Schedule and in the impeachment provisions of the 1999 Constitution of the Federal Republic of Nigeria.

1.49 Unfortunately, our various military rulers, like all dictators, were unable to draw this distinction between themselves and the State. Their intelligence outfits danced to their tune and their agents also saw themselves as beyond and above the law. This led to the hounding of journalists and those who criticised their administrations and policies. Intellectuals and human rights activists, among other critics of military rule, were arrested and jailed, without recourse to due process, in the so-called interest of State security.

1.50 The attitude was also reflected in the protection given to oil companies, which supplied the much of the needed oil revenue to various military administrations. Their interests became "State interests," which must be protected. This logically led to the systematic and generalised violations and abuses, which occurred in the Niger-Delta during the dark period of military rule in the country, as detailed in Volume one, Three and Five of this Report.

1.51 I find it instructive to say a further word about the cult of the Head of State, in the context of our experience with military rule and the institutional and moral decay I referred to at the beginning of this Foreword.

1.52 Military rule is absolute rule. It subverts and undermines the institutions of the State, imperceptibly initially but surely and gradually, it leads inevitably to a moral and political corruption, alongside the decay of time-honoured loyalties and values as well as institutional decay. In due course and as a manifestation of this deepening decay, cruelty and murder become norms of governance. Good faith and truthfulness become childish scruples while force and craft become the keys to success, Selfishness, naked and unadorned, need only succeed to supply its own justification.

1.53 This sums up the character and odious dimension of military rule in the country, as elsewhere. The fall-out, in our case, was the gross violations of the human rights of Nigerians, which are enumerated and elaborated upon in this Report, particularly in Volumes Two, Four, Five and Six.

Appreciation
1.59 I must express my delight at the espirit des corps with which we worked together as members of the Commission. It shows that, when all is said and done, there are innumerable Nigerians who apply themselves to work conscientiously and with dedication.

1.60 We thank the President, Chief Olusegun Obasanjo (GCFR) for the opportunity given to us to serve this country and the confidence reposed in the members of the Commission.

1.61 Our gratitude also goes to the Honourable Ministers of Justice and Attorney-General of the Federation, first Hon. Kanu Agabi (SAN), then the Late Hon. Bola Ige (SAN) and, then again Hon Kanu Agabi, for the keen interest they showed in our work and, more specifically, for their support. We regret and are saddened by the assassination of Chief Bola Ige (SAN) and wish his equally eminent wife and family the continued guidance and Grace of God.

1.62 We thank the Secretary to the Government of the Federation, Obong Uffot Ekaete for his understanding and support.

1.63 In the same vein, we thank all the government department and their staff at federal, state and local council levels for facilitating our work, whenever we needed their assistance.

1.64 No less important and encouraging has been the keen interest shown in our work by a number of foreign mission and international government organisations. We particularly thank the Ford Foundation for their immense financial support throughout the duration of the Commission's assignment. Our gratitude also goes to CDD, IDEA, British Council and German Embassy for their support.

1.65 We thank the various national and international non-governmental organisations that worked closely with us, providing useful insights into the nature of human rights abuses in the country
1.66 Our work would have been much more difficult and tedious but for the cooperation we received from all those who submitted memoranda and petitions and all those who testified before us. We thank them all.

1.67 We owe special gratitude to the electronic and print media for highlighting our work and bringing our deliberations, especially the public hearing to the attention of millions of our people.

1.68 We were fortunate to have a good team of researchers and resource persons, who worked with us. To them, we say a big thank you.

Introduction
Revisiting the historical context of the Commission mandate
1. The Commission has attempted in this Report, to capture the faltering if slippery threads of Nigeria's chequered history. Africa's most populous nation has faced challenges of enormous proportions. It has been battered and bruised. Its national history reflects an undulating landscape, made up of curves, hillocks, valleys and little mountains.

2. The questions persists: Where did Nigeria take the wrong turn? What is the root of its problems? Is it with its leadership or the followership? Have its resources been its undoing or is it the inability of the ruling elite to manage or distribute these resources in the prudent, accountable and transparent manner? What went wrong? Can we put Nigeria back on track again? Or, as a famous Nigeria playwright has asked, Are the gods to Blame?" or else why would a nation so richly endowed turn so suicidal?
3. These and several other questions go to the heart of the interlocking problems of democracy and development, and of peace and security in the country. The problem of the Nigerian state, and of good government in the country is ultimately bound up with the oxymoronic formulation of the federal idea as unity in diversity.

4. The Nigerian State is a multinational State in conception; yet the possibility of a Nigerian nation, demanding overarching loyalty from its diverse ethno-national groups, seems perpetually constrained and contradicted by the primordial demands of its multinational diversity. This has been, and continues to be the fundamental problem of nation-building, of democracy and development in the country.

5. How do we transform the Nigerian State into the Nigerian nation, thereby confounding the cynics who contend that, almost 87 years after amalgamation in 1914, Nigeria is no more than a mere geographical expression, or who refer to her as the mistake of 1914.

6. Despite the lingering multifaceted and complex crises it has been going through since independence in 1960, the country has remarkably held together, always pulling away from the precipice, except for the civil war years between 1967 and 1970. Indeed, many would argue that perhaps the country's resilience is both its strength and its weakness.

7. In short, as if in a stupor, the country has tottered on, all the fears, anxieties and frustrations of nation building, notwithstanding. Many have concluded that indeed, rather than being seen as evidence of weakness or fragility, the sense and sentiments of nationhood actually run deep in the veins of Nigerians. Nigerians love their country. They want to see it united and strong. The real problem is, at what cost and who bears the brunt?
8. The missing link appears to be the inability of the ruling elite and the political class to establish a nexus between the yearnings, desires, hopes and aspirations of its young and coming generation and the design and construction of a new future for Nigeria.

9. It is arguable that the continuing frustration about the character of the polity is not unconnected with the general feeling among the youth in the age brackets of 30-40 and below that earlier generations of the political class have squandered their hopes and future.

10. There is the feeling that the country's political leadership has been greedy, self-serving and lacking in serious political will, contributing in no small measure to the crises of democracy and development, which have delayed the country's march to nationhood.

11. When the military seized political power in January 1966, there was a general feeling in the country that they were motivated by altruistic intentions and objectives to save the country from descent into political chaos and instability.

12. As time passed, the country's military rulers and the military as an institution by and large lost their sense of direction. The greed of the military dragged the nation further and further away from the project of nationhood. The result is that by the end of almost 30 years of military rule, Nigeria is far more fragmented than it was in January 1966, when the military first seized power.

13. The democratic struggle against military rule in the country, whose high water mark was the return to democratic civilian rule on 29 May, 1999, symbolises and marks the return to the project of the three Rs (Rehabilitation, Reconstruction and Reconciliation), which the military enunciated after the end of the civil war in January 1970.

14. After wandering in the wilderness, the country seemed ready and prepared to return to the path it had abandoned through the military option.

15. Looking back with the benefit of hindsight, we can see that, in a way, the noble and patriotic project of the three Rs was a forerunner to the Human Rights Violations Investigation Commission. Yet, the setting up of this Commission could be considered an indictment of the Nigeria political military class.

Laying the basis for a regenerated Nigeria
16. This is why we believe that there is need for this country, this nation-in-the-making to reflect more seriously on its future, so as to render the establishment of a similar Commission in the future unnecessary.

17. The preceding volumes of this Report have tried to show how the Commission grappled with the problems of providing a platform for Nigerians to confront their gory past, in order to gear themselves for the difficult but essential battles of laying the foundation for a just and democratic Nigeria.

18. Generally, it was evidently clear, from most of the petitions received by the Commission and from the verbal presentations and arguments canvassed during the Commission's Public Hearings, that there were genuine concerns among the petitioners and the generality of our people, the citizens, that Nigerians need a nation to belong to, a nation cemented by a social contract of mutuality and reciprocity in cultural, economic, political and social relations, a nation to be proud of, one that provides its citizens with an enabling umbrella of equality of opportunities, social and distributive justice, protection and security.

19. From the sentiments re-echoed in messages received and the keen interest demonstrated in the mandate and work of the Commission by innumerable Nigerians, within and outside our country, we are convinced that, with the right social, economic and political atmosphere, a united, powerful, purposeful, compassionate and egalitarian nation will emerge from the frustrations expressed and captured by such expression as marginalisation, stranger, indigene, discrimination etc.

20. There is enough evidence on the ground to suggest that, were Nigerians to see a leadership that can synchronise public sentiments for the emergence of a Nigerian nation with genuine policy programmes of national reconciliation, reconstruction and national integration, in the next 10 or so years, the country could achieve harmony.

21. In view of this, our aim in the present Volume is to highlight some of the major institutional and structural changes that the Federal Government of Nigeria needs to embark upon to ensure justice to citizens and thus lay a durable and solid foundation for a democratic Nigerian nation.

22. After reviewing the tons of petitions submitted to it, the Commission has had to come face-to-face with the profoundly deep level of frustrations among the various communities in Nigeria.

23. But as we listened to the various petitions, we also detected the flaws in many of the assumptions. A very interesting picture emerges, when we put all the petitions together in perspective.

24. For example, it was interesting to find that there was hardly any consensus on what really constitutes marginalisation. What is more, it was interesting to note that while the Ohaneze petition on behalf of the Igbos pointed accusing fingers at the Federal Government, their allegations were challenged by both the Arewa Consultative Forum, on the one hand, and the Southern Minorities on the other.

25. While the Arewa Consultative Forum claimed to represent the North. The Joint Action Committee of the Middle Belt also believed accusations against the North, which the Arewa Consultative Forum claimed it was speaking for.