#EndSARS Report: It’s Accountability, Stupid!

Rejected Report

No one said: “Well, I never!……”, when the Federal Government rejected the Lagos State Judicial Panel of Inquiry’s Report! I don’t think anyone was particularly surprised or astounded by that outcome. Accepting the findings of the Panel, would be tantamount to admitting liability for what transpired at the Lekki Tollgate on October 20, 2020; and given the gravity of the offences alleged and contained in that Report – Murder, Manslaughter, Assault with intent to cause Grievous Bodily Harm, using unreasonable force on unarmed, peaceful Protesters, to mention but a few, anybody trying to escape liability would be foolish not to maintain a “Wrong and Strong” stance like Government has done. We all know that, no Nigerian Government has ever been accountable to the people. Our previous military regimes, were autocratic, despotic and a law unto themselves; and now, the civilian stratocratic autocratic democrats, particularly this APC administration, are trying to achieve more or less the same goal of non-accountability, not so subtly, I might add; and Section 6(6)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) which ousts the jurisdiction of the courts when it comes to some form of accountability, that is, the provisions of Chapter II of the Constitution, the Fundamental Objectives and Directive Principles of State Policy, furthers their cause. The security and welfare of the people, which is the responsibility of Government, Section 14(2)(b), is also contained in the said Chapter II of the Constitution. And, undoubtedly, Government didn’t fulfil their constitutional mandate to the #EndSARS Protesters in this regard, on October 20, 2020 at the Lekki Tollgate. But, it didn’t stop there. They not only failed to protect the Youths, they unleashed terror on them.

Conditions for Dispensing a Crowd

Furthermore, Section 33 of the Constitution is also unequivocal about every person’s right to life, which can only be lawfully taken away under certain exceptions mentioned therein; and the Lekki Tollgate incident does not qualify as one of them (see Section 33 (2)(a-b) of the Constitution).

Section 33(2)(c) permits the use of reasonable force where necessary, which may result in the loss of life, for the purpose of suppressing a riot, insurrection or mutiny. The online Cambridge Dictionary defines Riot thus: “An occasion when a large number of people behave in a noisy, violent, and uncontrolled way in public, often as a protest”; but, Youths sitting down on the ground, holding the Nigerian flag and singing the National anthem, as they did at the Lekki Tollgate, certainly do not fit into this definition. In fact, sitting on the ground signifies relaxation or surrender, and definitely not aggression. Yet, Government used deadly force on unarmed Youths sitting on the ground, despite their rights to freedom of thought and opinion, expression, peaceful assembly and association, and movement (See Sections 34 (1)(a), 38(1), 39 (1), 40 and 41 of the Constitution). See also Section 45 of the Criminal Law of Lagos State 2015 for the definition of riot. See the case of Hassan v EFCC 2014 N.W.L.R Part 1389 Page 607 per Abiru, JCA.

According to the online Collins Dictionary, Insurrection is defined as a “violent action that is taken by a large group of people against the rulers of their country, usually in order to remove them from office”, while Mutiny is an: “open rebellion against constituted authority, especially by seamen and soldiers against their officers”. It is obvious that the only thing that the Lekki Tollgate Protest had in common with any of the above-mentioned definitions of riot, insurrection and mutiny, is the large number of people that were there present! Beyond that, the gathering was neither violent, nor rebellious, nor a coup attempt. It was simply a well-coordinated and organised group expression of dissatisfaction against Police brutality against the Youths, and a demand for the reform of the Police and good governance. If it was anything violent or disorderly, surely the Lagos State Governor and the numerous dignitaries and people who were in attendance, would not have ventured to the Tollgate for obvious security reasons.

The truth of the matter is, whether the Army fired live or blank bullets, either scenario is unacceptable. There are global best practices criteria for dispersing a crowd. First, the crowd must be an “unlawful assembly with the object of committing violence”, or one that could potentially disturb public peace. The #EndSARS Protest which had gone on for a few days before the attack of October 20, was neither; globally, there was an attestation that it was a peaceful, orderly and interesting event. Second, there should be a court order to disperse an unlawful assembly. To the best of our knowledge, there was no legitimate court order to disperse the crowd, and any such order would have been illegitimate, since the condition precedent for granting it – violence and disorderliness, did not exist. And, third, pepper spray, tear gas and the like, are the instruments that are employed to disperse unlawful assemblies. See the case of Yusuf v Obasanjo 2005 18 N.W.L.R. Part 956 Page 96 per Salami, JCA.

Report/White Paper

We have had countless Inquiries and numerous White Papers, much less contentious than that of the Lagos State Police Brutality/#EndSARS Report, which never saw the light of day; how much more the incident on which this one is partly based upon, which some have escalated to a crime against humanity. On the other side of the coin, others like the Minister of Information (Disinformation), on behalf of Government, have dismissed the Report as being “Tales by Moonlight” – an insensitive insult to the dead, families who lost their dear ones on that fateful day, and to those who were injured. I’m certainly not holding my breath that a Report as controversial as this therefore, will be allowed to come into view. Even to charge the Officers responsible for any of deaths alleged, whether 99 or 9 deaths, would also be an admission of culpability on the part of the Federal Government/Army/Police and Lagos State Government. As usual, the hope for accountability for this unfortunate incident, is once more bleak.

The bottom line is that, a system that is run on little or no accountability, one that makes non-accountability a policy, especially on the part of its Government, is doomed and does not have any hope of success; and this is yet another reason why the Nigerian system has been set up for failure.

African Women on Board

On Friday, I was a Panel Discussant at the Project launch of ‘African Women on Board’ (AWB) themed ‘Safety in the Work Place’; and our own Panel topic was ‘Rule of Law: Consequences of no Consequences’ – there was a focus on sexual harassment in the work place, gender discrimination and so on. For me, the way the sexual harassment issue is handled in Nigeria, is just a microcosm of our warped society – again, no accountability and little or no consequences for sexual harassment, an unholy practice which is prevalent in our society as it is in many parts of the world. Possibly, if the BBC hadn’t done their exposé on sexual harassment in leading West African Universities, including Nigeria’s, people like Prof Richard Akindele of Obafemi Awolowo University, Ile-Ife, would never have been brought to justice for demanding for sex from Post Graduate student, Monica Osagie, to improve her grades. In 2018, he bagged a two year jail sentence for his offence.

My submission at AWB was to the effect that, generally, Nigerians need a change in mind set/transformation. Even though there are not really any laws in Nigeria providing for sexual harassment in the workplace like we have the Sexual Harassment in Tertiary Educational Institutions Act 2016, or the laws of New York, USA which make for example, inappropriate touching (in the work environment) a Class A misdemeanour attracting up to one year imprisonment upon conviction, I’m not sure how effective the enactment of a similar law for the Nigerian work place would be, because of the general lack of enforcement of most of our laws, and the non-accountability syndrome that has pervaded our society; and the fact that a little sexual harassment here and there, has never really been considered to be a big deal in Nigeria.

There was mention of Senior Lawyers who travel with their female Juniors for cases and conferences out of town and book only one hotel room, meaning that they expect the females to sleep in the same room. At the recently concluded Annual General Conference in Port Harcourt, the Nigerian Bar Association launched a Sexual Harassment Policy drafted by its Women’s Forum headed by Professor Yemisi Bamgbose, SAN. This is a step in the right direction. Enacting such a policy into law, and more importantly, ensuring that there is a clear process for reporting such incidents, and that the law is actually enforced, possibly by setting up an Equal Employment Opportunity Commission like there is in USA to channel such complaints to, may just help to curb sexual harassment.

The case cited by one of the Discussants, Mrs Ejieke Maduka v Microsoft Nig. Ltd & Ors 2014 41 N.L.L.R Part 125 67 NIC, in which the National Industrial Court of Nigeria (NICN) found for the Applicant and awarded damages to her, in a sexual harassment case in which she lost her job because she didn’t succumb to the advances of her boss, is almost one in a million in Nigeria (see Section 254 of the Constitution for the jurisdiction of the NICN, particularly the Section 254(g) amendment which deals with sexual harassment). In most cases, those who make formal reports of sexual harassment in the work place, end up being victimised and sacked like Mrs Maduka, and they are not as fortunate as her to get justice; the victims become the victimised, and so, many are afraid to talk – they just grin and bear it in silence, especially because they need their jobs. They may also be blacklisted as ‘whistle blowers’, and find it difficult to secure any other employment.

Sexual Harassers mostly go scot free in Nigeria, while their accusers are the ones who suffer! This is the same fate being suffered by the Youths, those who were traumatised, and the families of those who were allegedly killed at the Lekki Tollgate. For those who are cruel enough to assert that because families did not come out to complain that they lost any of their members, no one died at the Tollgate on October 20, my response is that those families obviously do not want to be hunted down and victimised like Kamsi Ochuko (Comrade Kamsi) who testified at the Lagos State Panel of Inquiry, and was brutally attacked and assaulted by unknown men recently.

Conclusion

How did Nigeria get to this? Where good is bad, bad is good or the norm, and telling the truth has become unfashionable? I discovered that, in many countries, the role of a Minister of Information is one that consists of disseminating censored information and propaganda. Our own dear Minister, has on numerous occasions, stretched this mandate a notch higher to outright falsehood, and the Lekki Tollgate incident seems to be a prime example, by simply denying that live bullets were shot at Lekki, without proffering any evidence to back this position. It is trite law that, he who asserts must prove. See the case of Mrs Betty Darego v A.G. Leventis (Nig.) LTD & 3 Ors CA/L/481/2011 LER [2015] per Nimpar, JCA. Though Section 6(6)(c) of the Constitution protects Government from accountability, it can be held responsible for its acts or omissions at the time of elections when the voters get the opportunity to vote non-performers out of office; unfortunately, again, Nigerians have mostly been denied and deprived of this opportunity to exact accountability from Politicians/Government and its Officials, as our elections are famous for being marred with malpractice and rigging the undeserving into office. The fact that Government does not have much regard for the rule of law, is yet another missed opportunity for accountability. Sadly, the odds just seem to be stacked against accountability in Nigeria.