Owonikoko: #EndSARS Panel Breached Oath of Confidentiality and Duty

In this interview with ARISE News Channel, Counsel to the Lagos State Government on the #EndSARS panel, Mr. Abiodun Owonikoko, SAN, airs his views on the report leaked on Monday. He insists that the outcome of the report will still need to be subjected to judicial review, otherwise, its recommendations are not binding on anybody. Emmanuel Addeh brings the excerpts:

So, let us just start off with your general overview of the report that has been made public on the Lekki Tollgate Massacre as the panel calls it.

Let me paraphrase my response with a caution. I was a retained private solicitor to represent the interest of Lagos state government on the panel along with my other colleagues, another SAN, Enitan Olukayode and our colleagues.

I have avoided having to make comments about proceedings before the panel or their reports up until now, because I know that by law, the panel set up was a judicial panel of inquiry and its decisions, recommendations, resolutions are not meant for public consumption in the first instance.

What they do is to submit a report to the government, which may be a unanimous one or a divided opinion if the panel members were unable to agree on certain things under their terms of reference. It is government’s own review of that report and its final decision on it that ought to be available for public consumption.

Why is that so? Even the government’s decision on it which comes by way of White Paper is not binding on anybody that is aggrieved and you are entitled to subject it to judicial review in a court of law. An instance that you may readily recall was the Oputa Panel.

One of the reasons a number of some of the recommendations did not see the light of day, was that it was challenged in court and the Supreme Court held that some of the matters that the panel looked into, much as the public was interested in knowing the truth about them, were beyond the remit of the federal government to constitute a panel to look into.

Speaking today, I am not speaking for Lagos State Government, I am not speaking on a report that is validly published and which can be authenticated as the outcome of that judicial inquiry. Nevertheless, I can’t pretend not to be aware that certain documents have been circulating in the social media and have been subject of comments and responses.

I have myself seen one of such reports, it is unsigned, but it contains the names of all members and I did not, on going through it, see any indication that it was not a unanimous position. It may well be however, that it is a draft of a minority opinion, because given what I know, having spent one whole year from the beginning of the sitting of the panel till the end, except for occasions where one or two of my colleagues had to stand in for me and we have record of proceedings, there was nothing that transpired before the panel that escaped my knowledge.

That being the case, I must say that I am totally shocked about what I read to be the report, particularly the finding with regards to 40 something victims, some of whom were described as deceased, some of them described as missing but all attributed by the panel to what is called the Lekki incident.

That there is the undisputed, uncontroverted fact that the military personnel got to the Lekki Tollgate around past 06:00PM in the evening as part of mobilisation towards enforcing the curfew imposed by Lagos state government following the assessment that security situation in the state was at a stage where special attention had to be given security provided to impose a curfew and restore law and order.

As at that morning, Mr. Governor had addressed the state and issued a proclamation for a curfew to commence at 04:00PM. That was presented from what we now knew at the panel by a security council meeting held by the State Government Security Council a day before, involving the Police, the Army, the Navy, the SSS, the Attorney-General, the Governor and a few other government functionaries where they assessed the entire situation and came to the conclusion then that things were going out of hand. As at that time, policemen were being killed, a female orderly to a First Lady was stripped naked and assaulted at Ikorodu.

On the very night that this happened, a first-class traditional ruler was lodged at Oriental Hotel and information got to the hoodlums and they were going to make an attempt on his life. It was his own governor who called the Lagos State Governor that my first-class traditional ruler is under threat at Lekki, Oriental Hotel.

I am sure you remember that there was an attempt to burn down Oriental Hotel. If that had been allowed to happen, I am sure we would not be talking about Lekki Tollgate, we would be talking about what led to a first-class traditional ruler visiting Lagos being killed in a hotel. I don’t want to go into other things. My opinion here is based on my first-hand information and involvement in the proceedings and the record that we have.

We had a member of that panel come up here yesterday to confirm that the only difference between the report circulating online and what they submitted was some typographical corrections. So, he confirmed that the report is authentic. Are you saying that people were not killed at the Lekki Tollgate?
Let me first of all say, I wouldn’t know who the panel member that appeared on your channel was.

The youth rep of the panel
I can forgive the youth rep because I will read to you now what Section 8 of the law that set up the panel says about their report. The Tribunals of Inquiry Law of Lagos State, Section 15.1, Report and Order in Relation to any Property or Matter dealt with in the report. “A tribunal will make and furnish to the governor a full report in writing of its proceedings, findings and recommendations and record an opinion and reasons leading to its conclusion. Any member of the tribunal dissenting from the conclusions or any part will note his reason for such dissent.”

This provision has been interpreted as imposing a duty of confidentiality on the panel that conducts an inquiry of this nature, not to disclose the content or discuss its proceedings anywhere except to await the finding of the government on that report.
I am shocked to hear that a member had already come here to start talking about the content. You would then have to go to the oath of office they swore when they started their operation. The oath has to do with fidelity, impartiality, and confidentiality.

If anybody who was a panel member had gone out as at today while the White Paper is being awaited, to speak to what has happened, that person has breached not only the oath that he took to be a member, he has also breached the duty imposed on them not to discuss or divulge the content to anybody.

What we should be discussing, and is very important will be the government‘s outcome. That outcome can be criticised, challenged on the back of the original report, but it is what is actionable, justiciable, not whatever is contained in the report.
Let me be clear, I am not in any way trying to shut anybody out, I am just trying to let you know what the law says. And that was why for almost two months now, since the panel closed, I had been invited several times to speak as a protagonist or participant at the panel and I have declined to do so because I know that professionally and legally it was wrong for me to express opinion or do anything that will appear to prejudice the report.

So, let’s not waste too much time. I have just explained to you why that would be wrong. A number of them were not lawyers and that to me is actually the crux of the problem we have with this report. And I will tell you the first thing before I come to the other questions.

The questions you have posed about whether it is right to kill, definitely, you know that I can not be part of those who would justify extra-judicial killings or abuse of state power. So, the answer to that is that none of them is acceptable and from the evidence that we were able to gather at the hearing, there was not a single thing that was established, and I would come to that later.

But let me first say this, the panel that was constituted that submitted this report, had two reports. The mistake I observed that the government made was that there should have been a different panel entirely to look into the Lekki incident.
The panel that was constituted originally was meant to address victims of abuse of police brutality and SARS, there was no single member of the panel who had a personal case that he wanted to establish, there was no reason why we should be afraid that anybody there would have a pre-conceived notion or a settled position that they were going to be opened to been persuaded by evidence-led.

Now, in the course of that panel’s work this incident happened, but this incident had protagonists and antagonists. Unfortunately, at least, three members of the panel were picked from those who were protagonists of the case against the police that people like us also represent.

I was fully in support of what was going on up until 20th of October, even up until the night, until I became wiser the next morning when I did my enquiry. Those members are ordinarily not entitled to sit on this panel but they are members of this panel where we were trying to establish who were killed, at Lekki Tollgate, whether Lekki Tollgate Concession Company withdrew camera to suppress information.

This is the case they have been making on their own even before the panel sat, so from the very beginning, that panel lacked the judicial competence to determine this issue. At the point where the panel after about four attempts to have the Lekki Tollgate re-opened, they decided to re-open the tollgate.

I am sure you will recall that some members of the panel who were insisting that the Lekki Tollgate must be shutdown because they don’t want that place to be re-opened, they came out on their own and delivered a dissenting opinion asking that Lekki Tollgate should be re-sealed after almost four months.

The Lekki Concession Company had to submit a claim to its insurers for a loss in tune of N10 billion and they couldn’t do that as it had to be done faithfully without going to the site to identify what they have lost and making an inventory, these members of the panel said they must not open that place.

This shows you something, that some members had a position, and they were not in a position to express dispassionate, objective view on the matter that had to do with Lekki. That is the fundamental problem we had.

After that incident, the gentleman, a very respected member for almost the entire duration of the hearing of the Lekki incident stopped coming to the tribunal, the one that issued that statement and was in the public domain. I will expect that if the report was coming from this panel, having practically recused himself for almost five months, Lekki incident normally holds on Saturdays, other matters are held during the days of the week, this gentleman is always there, but when he comes to Lekki incident he never showed up.

Now you are telling me that that gentleman is entitled to give a report that would be considered objective on Lekki incident? Even before the Lekki incident he was in court challenging the legality of imposing Tollgate. Any court confronted with having to review this report is very unlikely to approve it.

Which gentleman are you talking about?
I think he is in the public domain. But the only senior advocate of the panel, Mr. Ebun-Olu Adegboruwa is the gentleman. I am talking about. Somebody I respect so much and I love his passion for the rule of law, but I think a lot has happened in recent times when people needed to violate their own position and then truth has to be sacrificed by almost everybody that has an interest in that matter.

So ordinarily, I was expecting if anything at all that Mr Adegboruwa is going to come up with a dissenting opinion or indicating that for this particular report, he is abstaining from signing on it but to know now that the report was signed by all is a worrisome perspective and I will tell you why that is so clearly wrong.

I was in involved in the case of Isiaka Adeleke against the present governor of Osun State, the success of overturning the tribunal judgment in the matter at the supreme court after the election was overturned by the tribunal was because one of the members of the panel that led the matter on a crucial day when a critical evidence was being tendered was not in court.
He did not sit in the panel when the time came for the judgment to be written, he wrote the judgment and the judgment anchored on the findings of evidence led on that particular day for that reason alone and no more, the court of appeal had to go ahead with the judgment.

That’s why Governor Oyetola is sitting on that sit today as a governor, how much more an impassioned panel that is going to look into matter that is of international importance and controversy, then you have members who recuse themselves from doing trial, who never participated in most of the things.

Whether it is reliable or not, it is already tainted and I wouldn’t expect that the government will not to be cautious in implementing that kind of report, especially with what we are now seeing that is coming out. So, I have made my point on that.
So, if you have a panel of nine, one of them honourably withdrew at that time, a young lady from LASU, another person who took a stand writing dissentient opinion, continue to hear and persuaded in giving the final report on the matter on which he has personal interest.

His personal interest does not mean the material, even if it is a philosophical or moral interest is enough to disqualify anybody from participating. I would want to know how that gentleman was able to sign off on this report as an objective and neutral report of fact that they were trying to find.

Well, he actually also said that he’s going to wait and see the outcome of events and he might publish the report if there’s any attempt to stay it. That’s the gentleman as you were calling him.

I’m happy to hear that. I know him, that’s the kind of thing he will do but what I explained to you is not about anything personal to him, but I’m just saying that technically and in terms of what is rule of law and fair hearing, he ought not to participate in this report that has to do with the Lekki incident.
The other ones, he was fully involved and I have nothing against him for that but for this report, where for almost 15 sittings he did not come, in fact, the most important evidence of this issue was the one by Sentinel Forensics expert, that expert consultant was engaged by the panel itself.

On the day the expert was to testify, the reason they did not go on was that they wanted all the members to be present and two people were absent, Mr Ebun Adegboruwa (SAN) and DIG Lakanu who was the representative of the police, a former DIG, was also absent. They said they will need their input to understand the presentation, it was adjourned three times until, at least I can recall, Mr Lakanu was able to appear.
I also recall, that for the long part of the expert testimony, Mr Ebunoluwa was not sitting at the panel, and that is the evidence that was objective and independent.

But Mr Owonikoko, why are you raising the objection now after the fact? Why not during the duration of the panel sitting and in fact right from the decision by the Lagos state government, whom you represent, to have the justice Okuwobi-led panel to investigate. Why did you wait until after the report had been made public and it’s unfavourable to now make this objections?
The report was not unfavourable to Lagos state government. The duty of Lagos state, the burden on them was to establish whether they were the one that deployed Army to the scene.

The evidence before the panel and their finding did not support such a suggestion, that was the only thing Lagos state had to explain, so there’s nothing against Lagos state.
But as a citizen now, not as a lawyer to Lagos state, I’m interested in trying to clarify matters because you have invited me and I’m telling you that if you have to subject this report to judicial screening which is subject to judicial review, these are the things that will come up and people must not be in a haste to begin to hail a report that as at now is mute until we know the final outcome.

Now you are aware, I have with me now, I have read the report, since you now confirm that it is supposed to be authentic, I have identified almost 40 discrepancies, very material discrepancies in that report.
These include awarding damages to people who are claimed to have died, who never died, who have even came out to say they did not die, including awarding damages to somebody they claim died but who actually was a witness to testify as to his brother’s death not even at Lekki toll gate.

Does that not show you that there was a thorough job done? How do you make that kind of serious mistake, to award millions and millions to somebody claiming that he died when actually he was even a witness before you?
In the report itself , you will find where the witness was there and they recorded his evidence, and the list they posted they said he died and awarded him N15 million. What kind of report is that? That alone, any report that has that fundamental error, will be crushed.