¹ Between 1979 and 1983.

² At the time of writing this paper the Saro-Wiwa case had not been reported in any of Nigeria's numerous law reports. The facts relied on here are from newspaper reports as well as the government's own paper released on the verdict of the tribunal: see The Guardian, 21 February, 1996.

³ The murdered people were Chief Albert Badey (former secretary to the Rivers State Government), Chief Edward Kobani (former Commissioner of Education, Rivers State), Chief Simeon Orage (a former Commissioner of Health, Rivers State), and his brother, Chief Theophilus Orage a ( former Community leader).

⁴ Saro-Wiwa and four of the other accused persons, Ledun Mitee (Deputy President of MOSOP), Bariben Kiobel, John Kapmen and Baribol Bera, faced a four-count charge of“murder contrary to item 13 of Schedule One to the Civil Disturbances (Special Tribunal) Decree 2 of 1987”.

⁵ The Ogoni Bill of Rights seeks to secure, inter alia, a reasonable share of the oil wealth for the development of the human and material resources of Ogoniland, reduction in environment degrading activities by oil producing companies, and greater political autonomy, i.e., “the spirit of having one's own destiny in one's own hand”. It may also be noted that Ogoniland is one of the major oil producing areas in Nigeria. Oil exploitation activities by oil companies had caused tremendous environmental pollution and degradation in Ogoniland without any significant corresponding benefits to the Ogonis. It was to fight this environmental menace and to secure some enumerated basic rights for the Ogonis that MOSOP was formed.

⁶ No. 2 of 1987. The Decree, which was promulgated by the Babangida Administration, was amended by the same administration in 1992 (see Civil Disturbances (Special Tribunal) Act).

⁷ The long title of the Decree proclaims it to be “an Act to provide for the investigation and trial of persons involved in civil disturbances, in any part of the Federal Republic of Nigeria”.

⁸ To be known as the “Investigation Committee”.

⁹ In the light of its findings in this behalf the Investigation Committee was to make recommendations as to the measures to be taken against any such persons.

¹⁰ Subsection (3) provides further that the Investigation Committee may make recommendation for the trial of persons involved in the civil disturbances.

¹¹ The Civil Disturbances (Amendment Decree) No. 45 of 1992 amended the composition of the tribunal to require not more than four members, one of whom must be a serving member of the Armed Forces. See also the Civil Disturbances (Special Tribunál) (Amendment) Decree No. 13 of 1987 which provides that a quorum for the trial of any offender shall be constituted by the chairman and any other three members.

¹² By virtue of s. 3(3), the president may “add to, alter or modify the list of offences referred to” in the first Schedule of the Decree.

¹³ The confirming authority was the National Executive Council which under President Babangida was the Armed Forces Ruling Council, and the Provisional Ruling Council under General Abacha.

¹⁴ The confirming authority may confirm or vary the sentence of the tribunal.

¹⁵ S. 8(1) (emphasis mine).

¹⁶ See the 164-page publication issued by the Federal Government of Nigeria on the Ogoni trials. See particularly, The Guardian, 21 February, 1996, 1 and 2.

¹⁷ Cf. s. 1(1) (a) of the Civil Disturbances (Special Tribunal) Decree.

¹⁸ Ibid., s. 1(2) (a).

¹⁹ Ibid., s. 1(2) (b).

²⁰ Ibid.

²¹ Ibid., s. 1(2) (c).

²² The tribunal went on to interpose that “we have not the slightest doubt that MOSOP and NYCOP laid the foundation of the disaster that occurred in Giokoo on 21 May, 1994”.

²³ This was also the charge against two other co-accused persons, Ledum Mitee and Bariben Kiobel.

²⁴ The Chairman of the Tribunal, Justice Auta, interpreted the quoted words to signify that enemies of the ongoing revolution would suffer capital punishment.

²⁵ The witness said it was a market day.

²⁶ “I do not blame you that the vultures there at Giokoo sent you to stop me”. The Tribunal also observed that unlike most of the other witnesses, Saro-Wiwa did not adduce any evidence in his own defence but chose to rest his case on that of the prosecution. In this wise, concluded the tribunal, Saro-Wiwa presented no evidence which could counterpoise that of the prosecution.

²⁷ See s. 1(a),(b),(c) and (d) of the Decree.

²⁸ See s. 1(2) (b) and (c) of the Decree. He may, incidentally, regulate the procedure to be followed by the Investigation Committee if he so wishes. See s. 1 (4) (b).

²⁹ See s. 2(1) of the Decree. There is a legal obligation to include a serving member of his main constituency, the Armed Forces, on the tribunal by virtue of s. 2(2)(b).

³⁰ See s. 7 of the Decree. “The confirming authority” happens to be the Executive Council.

³¹ See s. 7(2).

³² Amadi in this respect essentially regurgitates the views of Nwabueze; see The Guardian, 28 November, 1995, 22.

³³ “How valid is the Civil Disturbances (Special Tribunal) Decree 2 of 1987 (?)” The Guardian, 16 April, 1996, 26.

³⁴ See generally, for example, Bohannan, P., The Tiv of Central Nigeria, London, 1953.Google Scholar

³⁵ Amadi, above. Emphasis added.

³⁶ See Nwabueze; The Guardian, 5 December, 1995, 24.

³⁷ Sees. 2(2) of the Decree.

³⁸ Above. The performance of past government tribunals vindicates such public scepticism.

³⁹ As was the case in the trial of Saro-Wiwa and the eight other Ogonis.

⁴⁰ S. 220 of the 1979 Constitution has been amended by Decree 107 of 1994; the amendment retains the right of appeal available to an accused person standing trial in a criminal matter.

⁴¹ The African Charter on Human and Peoples' Rights has been incorporated into the corpus of municipal laws of Nigeria by virtue of the African Charter on Human and Peoples' Rights (Enforcement and Ratification) Act, Cap. 10 of 1990 Laws of the Federation. It was relied on in Ogugu v. Slate (1994) 9 NWLR (part 366), 1, particularly at 47.

⁴² Other factors include the ratio decidendi, the attitude of latter courts to the precedent decision, the attitude and contribution of counsel, etc.

⁴³ Normallya “court” of indeterminate position in the judicial hierarchy (some jurists even refuse to accord it the status and nomenclature of a “court”), a tribunal may by the instrument creating it expressly be given the status of a High Court.

⁴⁴ See s. 33(6) (c) of the 1979 Constitution of Nigeria.

⁴⁵ See excerpts from the government's publication of the Ogoni trials in The Guardian, 21 February, 1996, 2.

⁴⁶ I.e. the civil disturbance.

⁴⁷ See also ss. 8, 9 and 10 for liability in cases of “common intention”, counselling and accessories after the fact respectively. See also chapters IV and V of the Penal Code.

⁴⁸ Emphasis added.

⁴⁹ Presumably, the Decree does not foreclose the prosecution under these codes of a party who participates in a riot (which is per se an offence under the Criminal and Penal Codes) and in the course of the riot or civil disturbance, commits murder.

⁵⁰ Cf. s. 1(2)(a) of the Decree. Emphasis added.

⁵¹ One totally agrees with Amadi's characterization of Decree 2 as “a hangman's manual”.

⁵² The answer to this question has great practical significance; Saro-Wiwa and the Ogoni defendants were found to have “contributed to the civil disturbance” and therefore were party to the resultant murders.

⁵³ I.e. to take over.

⁵⁴ See the English cases of Pagett (1983 ) 76 Cr. App. Rep. 279, Roberts (1971) 56 Cr. App. Rep. 95 and Mackie (1973) 57 Cr. App. Rep. 453 for a discussion of the problem under English law.

⁵⁵ The history of the Criminal and Penal Codes of Nigeria actually vindicates this. What is today the Criminal Code of Nigeria was drafted in 1878 to replace the common law of crimes in England but was never enacted by the British Parliament. See Okonkwo, C. O., Okonkwo and Naish on Criminal Law in Nigeria, London 1980, ch. 1, at 5.Google Scholar

⁵⁶ Ojwang, J.B., “Laying a basis for rights towards a jurisprudence of development”, in Woodman, G. and Obilade, A. (eds.), African Law and Legal Theory, Aldershot, 1995, 371.Google Scholar

⁵⁷ At least in the initial years of military adventurism in politics and governance.

⁵⁸ In such a climate, the pattern is to arrest ministers and functionaries in the old government and mete out to them “revolutionary justice” which snubs human rights, legality and due process. It must be pointed out that most citizens, at least in the early years of military rule in Nigeria, supported these measures against a class that exploited and betrayed them just as they supported the public execution of armed robbers after trials before special tribunals.

⁵⁹ See Ghai, Yash, “The role of law in the transition of societies: the African experience”, (1990) 34 J.A.L. 8, particularly at 15 and 16.Google Scholar

⁶⁰ Following the execution of Saro-Wiwa and the other Ogoni activists, Commonwealth Heads of Government, who were at that time holding their periodic meeting in Auckland, New Zealand, prompdy announced the suspension of Nigeria from the Commonwealth for “a serious violation of the principles of the Harare Commonwealth Declaration”.

⁶¹ See The Guardian, 12 November, 1995 at 1 and 2.

⁶² Ibid.; emphasis added.

⁶³ The Press Secretary to the Head of State.

⁶⁴ Civilian as well as military.

⁶⁵ In the area of economic crimes there has been considerable law reform activity by successive military regimes in Nigeria. Ironically however, apart from increasingly resorting to shifting the burden of proof on to the accused, and imposing harsher penalties, the principles and elements of the much disparaged Euro-American criminal jurisprudence still survive.

⁶⁶ One of the primordial fears of citizens relates to the security of the person, family and property. Once these are assured, they do not care whether the legal tools which ensure these are of local or English provenance.

⁶⁷ Call it “reform” if you will.

⁶⁸ The decision to abolish customary criminal law was taken at the 1958 Constitutional Conference. Thus it was written into the 1959 Bill of Rights that: “no person shall be convicted of a criminal offence unless that offence is denned and the penalty therefor is prescribed in a written law”. This provision became s. 22(10) of the 1963 Constitution. S. 3(2) of the Penal Code is even more blunt: “No person is to be liable to punishment under any native law or custom.” See also the leading case of Aoko v. Fagbemi (1961) 1 All N.L.R. 400.Google Scholar

⁶⁹ S. 33(12) of the 1979 Constitution. S. 35(11) of the 1989 Constitution, which was to become operative in 1992 but was overtaken by political events in Nigeria and never saw the light of day, contains the same provision.

⁷⁰ Cap. 42 of 1958. The Criminal Code as well as the Criminal Procedure Act, Cap. 43 of 1958, apply in the Southern States of Nigeria.

⁷¹ Federal Provisions Act (No. 25 of 1960). Along with the Criminal Procedure Code (Cap. 30 of 1969) the Penal Code applies throughout the Northern States.

⁷² See Okonkwo, and Naish, , above, ch. 1Google Scholar

⁷³ See, for example, State v. Patrick Okeke (1969) N.L.R. 275.

⁷⁴ The Guardian, 28 November, 1995 at 22.

⁷⁵ A tribunal is classified as a military tribunal where the trial procedure is via a court martial and all or a majority of the tribunal members are military or policemen.

⁷⁶ Here the trial procedure is not that of a court martial, but all or a majority of the tribunal members are military or policemen.

⁷⁷ This is composed by a serving or retired superior court judge as a chairman sitting with four other members, one of whom must be a member of the Armed Forces.

⁷⁸ Some of these are the Robbery and Firearms (Special Provisions) Decree of 1970 (amended in 1971 and 1977) set up to deal with the offence of armed robbery with violence; the Petroleum Products and Distribution (Anti-Sabotage) Decree No. 35 of 1975; Recovery of Public Property (Special Military Tribunal) Decree of 1984 (as amended); the Special Tribunal (Miscellaneous Offences) Decree No. 20 of 1984; the Public Officers (Protection Against False Accusation) Decree of 1984; Treason and Other Offences (Special Military Tribunal Decree, No. 2 of 1986 (as amended); Civil Disturbances (Special Tribunal) Decree No. 2 of 1987 (as amended); and the Transition to Civil Rule (Political Programme) Decree No. 19 of 1987.

⁷⁹ The Public Officers (Protection against False Accusation) Decree imposes a two-year prison term without the option of a fine on individuals who, inter alia, publish any statement, true or false, which brings or is calculated to bring the government or public officer to ridicule or disrepute.

⁸⁰ See Ojwang, above.

⁸¹ It is an affront to African ethical ideas that even the relatives or friends of “A” in our unsophisticated hypothetical case may put on the toga of a judge and adjudicate the matter.

⁸² An obvious example is the tremendous influence that Roman law had exerted on the development of law in western Europe.

⁸³ See s. 370 of the Criminal Code.

⁸⁴ The consequences of such action may be dire; they may conceivably include political as well as economic isolation.

⁸⁵ This sentiment is essentially borrowed from Ojwang, , above at 370.Google Scholar

⁸⁶ This was the view expressed by a British Foreign Office Spokesman following the judgment in the case. See The Guardian, 1 November, 1995, at 1.

⁸⁷ If there was cogent evidence that the Ogoni activists procured certain Ogoni youth to kill the four prominent sons of Ogoniland, then they could have been convicted of murder under the provisions of the Criminal Code. This conclusion is compelled from the combined reading at ss. 315, 316 and 7 of C.C. The Ogoni Bill of Rights is probably also a seditious document, see ss. 50 and 51 C.C.