Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Making the Lagos EndSARS panel report useful 10 Dec 2021

Approximately a month after the first anniversary of the Lekki Toll Gate, Lagos incident of the 20th of October 2020, where soldiers, as has been confirmed, shot live firearms at unarmed protesters, the Lagos State Judicial Panel of Inquiry on Restitution for Victims of SARS Related Abuses and Other Matters submitted its report to the governor of the state, Babajide Sanwo-Olu. Unsurprisingly, the report was leaked to the press and has generated nearly as much controversy as the Lekki Toll Gate shooting incident itself.

The report brought some immediate relief by establishing the veracity of the sad incident a year ago, but its lasting value depends on the actions to be taken by the government. The value of a report of a Commission of Inquiry is in the government ‘White Paper’ on it and the remedial or policy actions to emanate from the report.

Many judicial pronouncements affirm this. The Supreme Court, in Olanrewaju v. Oyesomi [2014] 11 NWLR (Part 1418) 258, averred: “when the Government of the day accepts the findings of a Commission of Inquiry which it has set up, it is expected to express the acceptance in a White Paper. A White Paper is a public statement of Government Policy… It is only after a White Paper is issued to show that Government accepted a Commission of Inquiry’s findings that appropriate legislation is made that will show the true intentions of the Government.”

This, therefore, calls for more patience for the Lagos State Government (LASG) to issue its White Paper on the EndSARS report. The panel’s recommendations or decisions are only advisory; they are not legally binding.

It is noteworthy that the Lagos State Governor inaugurated the EndSARS panel on the 19th of October, 2020. This was days into the codenamed protests against police brutality in Lagos and across the country and a day before the Lekki Toll Gate shooting. Under its Terms of Reference (ToR), the panel was meant to identify victims of abuse, brutality and extra-judicial killings by the officers of the now-disbanded Special Anti-Robbery Squad (SARS) and other officers of the Nigeria Police Force (NPF), and to determine and recommend compensation for verifiable and deserving victims and their dependents.

After the controversial shooting of protesters at the Lekki Toll Gate and because of the global outrage it generated, the panel’s ToR was expanded to include investigation of the incident at the Lekki Toll Gate and to make necessary findings and recommendations.

As at the time of writing, Governor Sanwo-Olu had indicated that a White Paper would be issued. The propriety of leaking the report is questionable. However, the recommendations of the report, if adopted and implemented, would serve as a restorative balm for the many people that were rightly distressed by the shooting incident. It will also send a clear message against unlawful, state-sponsored violence and criminality by non-state actors in the run up to the 2023 elections.

But the report has already rekindled hope in the likelihood that a quasi-governmental investigation, including, as in this case, of the involvement of government in a heinous crime against the people may yield a truthful report. This is in spite of the notion that the LASG bumbled its way to this outcome. Mistrust of government had initially prevented people from providing needed testimonies to the panel. There was also public disillusionment on whether the government would actually seek to bring security operatives who violated human rights to justice, having failed to do so in innumerable previous incidents. Moreover, what generally followed the Lekki Toll Gate shooting from official quarters were denials, inconsistent statements, even indifference, and, as the panel report affirms, intimidation of potential witnesses and tampering with evidence.

Truth may not always be provable as objective fact. But it is awful, with the benefit of the report, to remember how the government had desperately tried to gaslight Nigerians over the events of that night. The panel report has tried to re-establish the truth. The following reading from its executive summary is at once damning and evocative of high emotions:

“That the Nigerian Army was invited for intervention in the State and was deployed to Lekki Toll Gate on the 20th of October 2020. At the Lekki Toll Gate, officers of the Nigerian Army shot, injured and killed unarmed helpless and defenseless protesters, without provocation or justification, while they were waving the Nigerian Flag and singing the National Anthem and the manner of assault and killing could in context be described as a massacre. The Panel also found that the conduct of the Nigerian Army was exacerbated by its refusal to allow ambulances render medical assistance to victims who required such assistance. The Army was also found not to have adhered to its own Rules of Engagement.”

The roles of other actors, including the NPF and the Lekki Concession Company (LCC) that manages the toll gate, were established. The members of the panel were heroic, establishing the truth of the incident beyond the truthiness of the shilling gun shots heard in and around Lekki on the night. The heroism is also contextualized in the ongoing onslaught against dissent in the country.

But we must remain optimistic. The recommendations of the panel on ‘restitution’, ‘healing’, ‘reconciliation’ and ‘bridging the gap of distrust’ between the government and its citizens can be impactful if implemented. But we should be clear that there cannot be any reconciliation or healing without the acknowledgement of the events of the 20th of October 2020. Making a mountain out of a molehill of discrepancies in some small details will not turn the truth into a lie or the other way around.

With EndSARS, it is very dangerous for the government to adopt its usual policy of rejecting anything that doesn’t align with its hackneyed, self-interested views and processes. An example of the posturing that should change presented itself in the testimony of Brigadier General A. I. Taiwo, Commander, 81 Military Intelligence Brigade, Nigerian Army. He told the panel that once a protest lasts longer than two to three days, it is hijacked by hoodlums and becomes violent. But the reality of the EndSARS protests did not conform to this conventional view.

The panel in its report found that “the protest at Lekki Toll Gate according to eyewitnesses that testified and from the video footages submitted by witnesses and LCC was very peaceful on all the days including the 20th of October, 2020 until the arrival of men of the Nigerian Army. Protesters had cleaners to clear the environment of debris, stones and any other dangerous object. The Panel finds that the modus of the protest was that they had tents, some brought their cars and some other slept on the bare grass. The protesters had cordial relationship with LCC personnel and gave them food in their various offices. Panel finds that the gathering at the Lekki Toll Gate was not that of hoodlums and cultists. They were vigilant against petty thieves and miscreants who they apprehended and handed over to Policemen. They had private security men and bodyguards, they also had ambulances to attend to health issues, they had welfare officers who took care of feeding the protesters and they had an effective sanitation team that cleared the protest ground daily through consistent sweeping with zero tolerance for dangerous items and weapons such as stones, sticks, guns, machetes, etc. They also had an effective crowd control mechanism.”

Another example is on the role of Nigerian Army in providing internal security and stability. Brigadier General Taiwo likened the state of affairs in the days around 20 October 2020 to the (onset of the) Liberian civil war which had overwhelmed the police and other paramilitary services and, therefore, justified the army’s intervention. He invoked the constitutional duties of the Nigerian army under Section 217 (2) (c) of the Constitution to suppress civil insurrection and protect the territorial integrity of the nation from internal and external aggression.

But the panel said that “although the Army gave copious evidence of general commotion, violence and mayhem in other locations in Lagos State other than Lekki Toll Gate, there is no justification behind the deployment of its soldiers and officers to Lekki Toll Gate in particular, when there was no violence reported there instead of the other critical areas (for example in places like Orile, Mushin etc), which indeed escalated the violence. The deployment of the Army to Lekki Toll Gate on 20/10/2020, in the absence of any reported violence, was totally unwarranted.”

The optimistic view of the conclusions of the panel report notwithstanding, it would be difficult for the country to take positive lessons from this incident, learn from mistakes, and update rules of engagement and management of protests if the officialdom fails to even acknowledge what happened and separate it from fiction.

The panel, set up by the LASG, was chaired by a retired Justice and had legal practitioners as members. It was strictly a fact-finding committee and was neither a court nor an extension of the judiciary. Again, the courts have made the nature of Judicial Commissions of Inquiry clear. As stated by the Court of Appeal in the case of Ntung v. Longkwang [2021] 8 NWLR (Part 1779) 431, “a Judicial Commission of Inquiry is not the same thing as a court of law or its equivalent and its function is merely investigative and it is in the nature of a fact finding committee.”

The onus is now on the LASG to issue a White Paper that adopts the recommendations stipulated in the report that it can enforce. The state should also review its processes on engagement with security agencies through the instrumentality of the State Security Council. Although the LASG has over the years implemented several legal and judicial reforms, it must progressively take steps to protect the human rights of its residents by the security agencies.  

It is apposite to conclude by reiterating one of the tenets of democracy that gives the events of the 20th of October 2020 its abhorrent nature, as stated in the report:

“The right to peaceful protest is the individual and/or collective exercise of existing and universally recognized human rights, including the rights to freedom of expression, freedom of peaceful assembly and of association, the right to take part in the conduct of public affairs, the right to freedom of thought, conscience and religion, the right to participation in cultural life, the rights to life, privacy, liberty and security of a person and the right to non-discrimination. The right to protest is also essential to securing all human rights, including economic, social and cultural rights.”

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).

Stop Press!
The Lagos State Government released its White Paper on the Lagos EndSARS panel report on the 30th of November 2021. Its insincerity was evident in the verbose speech of the state governor Babajide Sanwo-Olu on the White Paper. In describing the findings of the panel report regarding the shooting of the 20th of October 2020 as speculative, inconsistent, contradictory and unreliable, the government has squandered an important opportunity for bridging the gap between itself and its citizens. The cosmetic recommendations of the White Paper will not provide the needed remedy.