A TRAVESTY OF LAW - BY MICHAEL BIRNBAUM QC
As part of messages to mark the remembrance of Ken Saro Wiwa and the 8
others, MOSOP-UK on behalf of all Ogonis present - A travesty of Law. For
this and other information on Ogoni please visit mosopcanada website:
www.mosopcanada.org
A Travesty of Law and Justice: An Analysis of the Judgement in the case of
Ken Saro-Wiwa and Others
Date: December 1995
Posted with permission
Author: Michael Birnbaum, QC
1. INTRODUCTION AND SUMMARY OF CONCLUSIONS
1.1. On 21 May 1994 4 Ogoni elders were brutally murdered in the course of a
riot at Giokoo Rivers State, Nigeria. A Civil Disturbances Special Tribunal
was appointed by the Federal Military Government to try offences arising out
of that riot. I5 people charged with murder were tried by the Tribunal. It
heard 2 trials which were held concurrently. The first and most widely
publicised was that of Ken Saro - Wiwa and 4 others. The second was a trial
of 10 defendants. Saro - Wiwa, Ledum Mitee and Barinem Kiobel were alleged
to have incited all the other 12 defendants to commit the murders. 9 of the
defendants were convicted: 4 in the first trial and 5 in the second. The
other 6 were acquitted.
1.2. In March of this year I attended the trials as an observer on behalf of
the Bar Human Rights Committee and the Law Society. My report, entitled
Fundamental Rights Denied, was published in June by Article 19. In it I set
out a detailed critique of the trials and the evidence. I demonstrated that
the trials were manifestly unfair and in breach both of the Nigerian
Constitution and numerous human rights instruments. I expressed grave doubts
about both the sufficiency and the quality of the evidence as disclosed in
the prosecution witness statements.
1.3. The transcript of the judgement of the Tribunal in the first trial has
now been published. It runs to 57 pages.
1.4.The victims were Chief Edward Kobani, Chief Theophilus (T B) Orage,
Chief Samuel (S N) Orage, Chief Albert (A T) Badey
The defendants were Kenule (Ken) Saro - Wiwa, Ledum Mitee, Barinem Kiobel ,
John Kpuinen , Baribor Bera.
Only Mitee was acquitted. The others were each convicted of all 4 murders
sentenced to death and hanged.
1.5. I have analysed the judgement. My main conclusions are:
(a) The judgement of the Tribunal is not merely wrong, illogical or
perverse. It is downright dishonest. The Tribunal consistently advanced
arguments which no experienced lawyer could possibly believe to be logical
or just. I believe that the Tribunal first decided on its verdicts and then
sought for arguments to justify them. No barrel was too deep to be scraped.
(b) Analysing the prosecution evidence relied upon by the Tribunal there was
no case against any of the defendants save, conceivably, for Bera. (see 4
below).
(c) In order to overcome the deficiencies of the evidence the Tribunal ruled
that it did not have to apply the ordinary law of murder. It invented a new
law of murder based on guilt by association (see 5.1 - 4).
(d) The Tribunal held that senior members of Mosop and Nycop could be
convicted on the basis of alleged threats of violence or killing made at
meetings where they were not even present (see 5.5).
(e) The Tribunal reversed the burden of proof in 2 respects. First it ruled
that where a defendant had not called a witness to challenge a specific
piece of evidence that evidence must be presumed to be true. Secondly
whenever evidence could be interpreted in 2 ways it consistently chose the
one least favourable to the defence (see 6 and 7).
(f) The Tribunal pretended that Saro - Wiwa had not challenged the
prosecution evidence knowing full well that he disputed much of it (see
6.5).
(g) In convicting Kiobel the Tribunal ignored evidence suggesting that he
had tried to stop the violence. Some of this evidence had been given by
prosecution witnesses (see 9).
(h) The Tribunal frequently shifted the ground of its argument against the
defendants. For example a senior position in Mosop was regarded as evidence
of guilt. But Kiobel's denial of membership was also taken to be evidence
against him (see 9). Again in the case of Kpuinen, not only the rallies that
had actually taken place, but even those that had never occured because he
had cancelled them were said to incriminate him (see 10).
(i) The Tribunal acquitted Mitee on a basis which entirely undermined and
contradicted the arguments by which it justified the conviction of Kpuinen
(see 10).
(j) The Tribunal made no attempt to consider whether the prosecution
evidence was true. It presented a one sided picture of the case ignoring
allegations that a large number of prosecution witnesses had been bribed
(see 12).
(k) The whole tenor of the judgement is overtly political. It is a polemic
against Mosop and Nycop.
1.6. This analysis is intended as a sequel to my earlier report although it
will, I hope, be readily comprehensible to one who has not read that report.
Some very basic knowledge of the situation in Ogoniland is presumed. Page
references are to page numbers of the judgement, save that those prefixed
"Rep" or "App" are to my earlier report and its appendices respectively.
Paragraph cross references are to this analysis. For clarity I have given
names of prosecution witnesses in capitals.
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2. PROSECUTION EVIDENCE AS RECOUNTED BY THE TRIBUNAL
2.1. The Tribunal gave a resume of the history of Mosop from its peaceful
inauguration in the early 1990s. The decision to boycott the Presidential
election of 12 June 1993 polarised Mosop. Some, such as Saro - Wiwa and
Mitee supported the boycott, whilst others including DR LETON and the
murdered Chief Edward Kobani opposed it. LETON and Kobani resigned. Mosop
encouraged violence. Nycop its youth wing was directed to enforce the
boycott. On 12 June Nycop ransacked the 2 police stations in Ogoniland at
Kpor and Bori. It set up road blocks "all over the area......the police were
sacked from Ogoni land on that day." (p4).
2.2. Senior Ogonis who protested at this behaviour were termed Vultures.
"Their palaces were destroyed; cars burnt and they themselves driven out of
Ogoniland". No Vulture was safe in Ogoni. At p 5 the Tribunal states that in
November 1993 Nycop Vigilante publicly condemned 7 prominent Ogoni elders to
death. However the judgement goes on to give 8 names of the condemned: Chief
Kogbara, Dr Kpakol, Dr Senator. Mr Birabi, MISS VIKUE, Chief Edward Kobani,
Chief S.N. Orage and Chief Badey.
2.3. CELESTINE MEABE identified Saro - Wiwa as President of Mosop; Mitee as
vice President and legal advisor; Kiobel as Chairman of Kilsi Gokana and
Chairman of Mosop Publicity Committee; Kpuinen as Vice President of Nycop
and Bera as one time chairman of Gokana Central Vigilante. Goodluck Diigbo
was President of Nycop. Its headquarters were at 24, Aggrey Rd Port
Harcourt.
2.4. MEABE said that on 4 February 1993 Saro - Wiwa had encouraged him to
run for the office of Co ordinator 1 to Nycop. He was elected. In October
1993 Kpuinen invited him (MEABE) to a Nycop Executive Council meeting at
Aggrey Rd. Diigbo urged him to "go home and use the youths to deal with the
"vultures" even if it involved their lives". MEABE's idea that a
reconciliation should be attempted between Saro - Wiwa and the Vultures was
rejected. (p6).
2.5. PRISCILLA VIKUE testified that her house had been destroyed. Some time
later she met Saro - Wiwa and confronted him with an allegation that "his
boys Nycop Vigilante" had destroyed her house. Saro - Wiwa repled that there
was revolution in Ogoni: if she were not part of it she would go with it. He
added "Priscilla you better join now because heads will roll" (p6 - 7; p34 -
35).
2.6. DAVID KEENOM described himself as Provost 1 of Nycop. At about the time
of the resignation of Edward Kobani and LETON Saro - Wiwa was arrested.
After his release he instructed Diigbo to summon a meeting of Nycop. At the
meeting Saro - Wiwa said that Kobani and LETON intended to return to Mosop.
Their return was opposed by Kpuinen but supported by KEENOM. Saro - Wiwa
then told the meeting that they should "deal with" 14 named people who had
received money from Shell and Chevron. The names included Edward Kobani,
LETON and VIKUE. At a later meeting Diigbo directed the Vice Presidents of
Nycop "to go home and mobilise all the youth to make sure they killed the
people named ... and burn their houses." KEENOM, who disagreed with this
plan, "disrupted the meeting" in protest and was later "served with a sack
letter." He was "dubbed a saboteur" and accused of having taken bribes from
the Vultures (p7 - 8; p36).
2.7. LIMPA GBAA testified that on 20 May 1994 (the day before the murders)
Saro - Wiwa spoke in Kpite Tai at a campaign rally for the Constitutional
Conference Elections. GBAA arrived at 2pm. Saro - Wiwa and his "entourage",
including Mitee, were already at the meeting. Saro - Wiwa told the meeting
that Edward Kobani had bought a "Constitutional Conference Election Form".
The Tribunal gave 2 different versions of what, according to GBAA, Saro -
Wiwa then said to those present:
"He urged them to scout wherever the "vultures" were holding their meeting
and deal with them. Thereafter one Otua Hart, a customs officer, got up and
announced he had enough boys to descend on the "vultures" wherever they were
holding their meeting". (p9)
"He urged Nycop members to go out and check wherever the "vultures" were
holding their meeting and kill them. One Otua Hart a customs officer serving
in Warri said he had enough boys to descend on the "vultures" wherever they
were holding their meeting." (p37).
2.8. There may be an enormous difference between "deal with" and "kill". The
p37 version is the only evidence cited by the Tribunal that Saro - Wiwa ever
said that anyone should be killed. Indeed in a third passage at p40 the
Tribunal put the allegation in this way:
"Ogoni leaders....... had to bring the matter before the Military
Administrator on 20/5/94. On that day Nycop youths, as already stated, were
urged by 1st Accused to search for where the Vultures were holding their
meeting and deal with them".
Note that the underlining in this passage is not mine; it is the Tribunal's.
2.9. MEABE and KEENOM, perturbed by the decision to kill vultures, reported
their concern to the Ogoni Council of chiefs which convened a peace meeting
on 18 March 1994. Rumours that Vultures were to be killed persisted and were
brought to the attention of the Military Administrator of the Rivers State
on 20 May (p9).
2.10. On 21 May Saro - Wiwa was campaigning in Ogoniland. The Tribunal
repeatedly stressed that he was not entitled to campaign because he was not
a candidate: although he had collected a nomination form he had never
returned it to the Rivers State Election Committee (eg at p16 and p38).
2.11. STEPHEN HASS0 described as "commander of the Security Task Force at
Bori/Ogoni" received a note telling him of Saro - Wiwa's intention to hold
rallies. He posted soldiers at the places where rallies had been scheduled.
At one venue Bori (? the judgement is unclear) a crowd gathered and spoke to
Saro - Wiwa in their own language. HASSO directed that the rally should
cease. Saro -Wiwa complied. Mitee invited Saro - Wiwa to his house for some
refreshment. The 2 defendants left in separate cars, followed by a security
team. On the way the security team "thought better of the lunch idea because
of the likelihood of occasioning another crowd". They overtook Saro - Wiwa's
car and told him of their decision. Saro - Wiwa and Mitee spoke briefly in
their own language. Saro - Wiwa then reversed his car and, closely followed
by the security team, went toward Port Harcourt (p9 - 10).
2.12. LEDOR VIZOR an office messenger was on a motor bike behind Saro -
Wiwa's car. At Kibangha Market an army lorry blocked it. Because of
pedestrian movement vehicles were moving slowly and so Vizor caught up with
the car. He saw Saro - Wiwa wind down his window and put out his head.
Saro-Wiwa "pretending to speak to the soldiers was addressing the youths in
Gokana Language". He said "I do not blame you that the Vultures there at
Giokoo sent you to stop me" (p11).
2.13. Meanwhile at the Gbenemene Palace Hall in Giokoo a meeting scheduled
to start at 10 am was being held to decide, amongst other things, how to
honour 2 Ogonis who had recently been appointed to important Government
positions. Kiobel was one of the 2. (Giokoo is near the place where the car
had been stopped).
2.14. The meeting commenced with a prayer. The Tribunal summarised the
evidence as to the ensuing riot. A motorcyclist Theophilus Ntooh from Biara
brought news that Mosop and Nycop youths were coming to "deal with" the
Vultures. Within minutes "a mammoth crowd of youths about 2,000" approached
the palace variously armed with machetes, rods, clubs, broken bottles,
stones and pieces of concrete.
"They were led by Baribor Bera and with shouts of E - sho - be! and chorused
Ehe! the mob invaded the meeting hall." E - sho - be was said by the
prosecution to be a war cry.
Bera attacked A M KOBANI (brother of the victim Edward) and MEABE telling
the mob to kill MEABE (p12).
2.15. Chiefs Badey and KPAI tried to escape to the shelter of a church
building. (The transcript at p12 refers to KPAI's companion as " A T Kobani"
but the context makes it clear that it was actually Badey : see also the
summary of his statement in App p29). They were then given shelter in a
house by a woman who, on being threatened by rioters, had to open her doors
to let them out again. They were both attacked. Kpai, whom the rioters
believed to be dead, was carried through the market and thrown onto the
floor of the palace hall. Chief Badey was beaten to death "dragged through
the ground and his corpse dropped at the hall".
2.16. In the hall A M KOBANI tried to parley with the rioters and asked them
to spare those left alive. Bera replied that Saro -Wiwa would bring a better
kingdom than they (ie the Vultures) had done. Chief S N Orage was then
attacked in the hall and killed.
2.17. "One Nordu Eawo approached Chief T B Orage and offered to take him out
to safety. The Chief who was in pants followed him. The Chief was never seen
thereafter."
2.18. MEABE had hidden in a room in the palace with the Gbenemene of Gokana
and KEENOM. He was discovered in the room and attacked again.
"He was handed over by the fifth accused (Bera) to some of the fanatics to
be taken into to a place of slaughter. When they were away from the fifth
accused he pleaded with them and they let him go."
KEENOM was discovered in the same room. Bera said that since he was only a
"little Vulture" he was not on the list of those to be killed (p14).
2.19. A M KOBANI and his brother Edward were left to face the crowd. The
attackers concentrated on killing Edward. He fell and his skull was pierced
with a rake. His hands and back were sliced and a stick pushed up his anus.
The attackers turned on A M KOBANI. He took refuge in a shrine at the back
of the hall where KPAI was already hiding. They were besieged but the shrine
is sacred and anyone sheltering in it is safe from harm. The attackers said
that although A M KOBANI was not a Vulture he must be killed so that he
would not live to prosecute them. (p14)
2.20. A M KOBANI saw a grey Peugeot car whose number plate was covered with
leaves pull up in front of the shrine. Kiobel got out of the car. The
attackers surrounded him. He spoke to them in "soft tones". The mob shouted
E - sho - be 3 times. Kiobel then drove off. The Gbemenemene of Gokana
emerged from a hiding place and was urged by the mob to libate for killing
so that those inside the shrine could be attacked. He refused and libated
for peace. Between 5.30 and 6 pm A M KOBANI heard gunshots in the distance.
The attackers fled (p15).
2.21. The Tribunal noted that it was in evidence that when Edward Kobani's
corpse was taken out of the hall it was taunted "rise up now and go and
contest election with Ken Saro - Wiwa" (p38). It was not made clear who gave
this evidence.
2.22. Meanwhile HASSO, having conducted Saro - Wiwa out of Ogoni, arrived at
his office at about 1pm. Kiobel came to his office
"to confirm the complaint made to him by youths who had earlier stopped him
saying that the first accused (Saro -Wiwa) had been arrested by soldiers".
HASSO assured him that Saro -Wiwa had not been arrested but his proposed
rallies were cancelled. Kiobel said that he would so inform the youths.
CHIEF GIADOM arrived at the office to report the violence at Giokoo. "(his)
appeal to Mr HASSO for a succour team to be sent to Giokoo received no
encouragement. It was third accused (Kiobel) who was told by the Commander
to go and deal with the situation at Giokoo."
2.23. The Tribunal gave details of the investigation, including the taking
of written statements from each of the defendants. I am not able to
summarise the statements of the first 4 defendants since I do not have
copies and they are not set out in either the judgement. However it is plain
that all their statements must have amounted to denials of guilt, since
there has never been any suggestion that any of them contained admissions.
Bera had made 2 statements. Part of one of them was quoted verbatim by the
Tribunal in September when it ruled that the defendants had a case to
answer. In it he accepted that he had been present at the riot but
maintained that he had urged the rioters not to harm the Vultures. It
appears that the other was to similar effect (p54). However, whilst these
statements contained no admission they were at variance with his case at the
trial which was one of alibi.
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3. EVIDENCE FOR THE DEFENCE AS RECOUNTED BY THE TRIBUNAL
3.1. The Tribunal set out the evidence given by and on behalf of each
defendant. Saro - Wiwa did not give evidence and called no witnesses.
3.2. Mitee gave evidence that Edward Kobani had invited him to attend the
first meeting of Mosop. He had been preoccupied with his legal practice (he
is a barrister) and was often absent from or late at Mosop meetings. After
the resignations of Edward Kobani and LETON he was elected Vice President.
He had co - operated with the security forces in "rounding up some
questionable (Nycop) vigilante".
3.3. As to the evidence of GBAA (para 2.7) Mitee said that he had been late
at the rally of 20 May 1994. He denied hearing Saro - Wiwa urging people to
kill or seeing Otua Hart. He was not familiar with the dialect used at the
rally. GBAA had a grudge against him because he (Mitee) had obtained an
injunction against his father. GBAA had "threatened to undo" Mitee and his
evidence was the implementation of that threat.
3.4. On the 21st he had heard of the deployment of troops in Ogoni and had
gone out with Kpuinen to find out the reason. He encountered HASSO as the
latter was following Saro - Wiwa and got permission to take Saro - Wiwa back
to his home for lunch. On their way to the lunch the security forces blocked
Saro - Wiwa's car and Mitee returned to Port Harcourt.
3.5. When Mitee heard of the killings he went to enquire of the Commissioner
of Police (p22). Next morning, hearing that he was wanted, he went to the
authorities and volunteered a statement.
3.6. Kiobel denied beng a member of Mosop. On 21st May he arrived at Giokoo
before the meeting commenced. He left and was at another meeting until 2.30.
Having heard that there was trouble at Giokoo he tried without success to
contact the security forces. He therefore returned to Giokoo. On the way his
car was attacked. At Kibangha Market he stopped "to change to a security
plate number which was also camouflaged with green leaves". Security men at
the junction refused to go to the Palace because their commander was not
there to direct them. He went to Bori where he and GIADOM saw the commander
(HASSO). Their appeal that security men be sent to save the situation was
met with the answer that HASSO had already deployed his men. He advised
Kiobel to see the Gbenemene who would advise the youths to disperse. He went
to the Palace with 2 men, Barisuatan and Williamson. He was surrounded by
youths who would not allow him to talk privately to the Gbenemene. He was
told he would be killed if he did not leave. He was slapped "and a stone
laid on his neck". They had to run for their lives. He left intending to go
to Port Harcourt. But having heard that his house was not safe for him he
stayed till midnight in a "palm wine hut" in the bush. (p23 - 25).
3.7. The Gbenemene gave evidence on behalf of Kiobel. He had left the
meeting early because his daughter was sick at home. On his return to the
meeting "he found the place disorganised."
"(Kiobel) met him in the shrine and invited him outside but trouble makers
did not allow (Kiobel) to speak to him. They threatened to kill both of them
if he should continue to talk to the Gbenemene. (Kiobel) had to leave.."
3.8. Kpuinen denied any involvement in any decision to hurt or kill. He
confirmed Mitee's evidence as summarised in para 3.4. Kpuinen said that
Mitee, after the blocking of Saro - Wiwa's car, gave him money to enable him
to contact the venues of scheduled rallies and to notify them of the
cancellation. He completed that assignment. He heard of the killings at
about 5pm when he was at Aggrey Road. Kpuinen denied MEABE's allegation that
he had invited him to a meeting of Nycop in October 1993. (see para 2.4).
Charges had been laid against MEABE (apparently by Nycop ?). MEABE blamed
him for that (p28).
3.9. The nature of these charges becomes a little clearer in the summary of
Bera's evidence. MEABE had been guilty of extortion and used Nycop Vigilante
for "bad things". He denied being in Giokoo on 21 May and gave details of an
alibi. He had been tortured and forced to sign statements admitting presence
at the riot (p29).
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4. INADEQUACY OF THE EVIDENCE
4.1. In chapter 20 of my report, Fundamental Rights Denied, I analysed the
relevant principles of the Nigerian law of murder, commenting that it was
similar to and based largely upon English law. I pointed out that the
defendant must be proved to have played a part in the events that caused the
death. Under both systems of law one who incites, instigates or encourages a
killing can be convicted of murder, but mere presence at the scene is not
enough. Nor is it enough to tell followers or henchmen to "deal with" an
enemy: the incitement must be to kill.
4.2. In the summary of the evidence given by the Tribunal there are some
striking gaps:
(a) There was no evidence that any of the defendants Saro - Wiwa, Mitee or
Kiobel ever incited anyone else to kill save for the second version of the
evidence of Gbaa (Para 2.7)
(b) Even if there was credible evidence of incitement to kill against (say)
Saro - Wiwa there was no evidence that anyone present either at the meeting
of 20th May or at the road block on the 21st took any part in the killings.
If I tell Smith to kill Brown but the fatal deed is done independently by
Green I am not guilty of murder.
(c) There was, according to the Tribunal, a riot involving 2,000 people. It
lasted some hours and there were a number of separate incidents in different
places. There was no evidence as to who physically killed any of the
deceased. Indeed the death of S N Orage was not seen by any witness.
(d) In those circumstances there was in my view no evidence of murder
against anyone except, conceivably, Bera who was alleged to be the leader of
the mob. There was evidence that he had urged people to kill MEABE and that
he wanted Vultures to be killed. But even in his case there may well have
been a powerful argument that in so large a riot that encouragement was too
remote from the actual killings. The merit of that argument would depend
upon the detail of the evidence.
(e) Each defendant was entitled to a separate verdict in respect of each
charge. Thus a conviction of (say) Bera on the charge of killing Edward
Kobani would not necessarily imply his guilt on any other charge.
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5. REINVENTING THE LAW OF MURDER
5.1. The Tribunal's solution to these problems was one of quite breathtaking
forensic audacity. It emphasised that it was constituted under The Civil
Disturbances (Special Tribunal) Decree of 1987. As pointed out in my report
this Decree is a recipe for injustice: it provides for trial by a Tribunal
with a military member, empowered to invent its own procedure and without
any right for the defendant to challenge its decisions in the ordinary
courts or on appeal. But the Tribunal compounded these iniquities by ruling
that it was not even bound to apply the ordinary law of murder. It warned
against
"....confusing the offence of murder under the Decree with a similar offence
under the Criminal Code, even though both attract the same punishment."
5.2. It reached this remarkable conclusion as follows. The Decree gives the
President 2 powers. First he may appoint an Investigation Committee to
investigate the causes of any civil disturbance. Section 1 provides that
such a committee may investigate whether any person or group of persons by
conduct or negligence or otherwise contributed to, encouraged or
participated in any civil disturbance.
5.3. Secondly section 2 empowers the President to appoint a Civil
Disturbances Special Tribunal "to try all cases of civil disturbance as
stated in section 1 of this decree". Section 3 gives such a Tribunal
jurisdiction to try specified offences under the Criminal and Penal Codes,
which apply in Southern and Northern Nigeria respectively. Those offences
are specified in Schedule 1 and include murder. But there is no suggestion
in the Decree that the substantive law to be applied by the Tribunal is
different from that to be applied by an ordinary court.
5.4. The key to the Tribunal's rulings lies in a passage at p30 -31 which
deserves to be quoted in full. Having cited sections 1, 2 and 3 of the
Decree the Tribunal stated:
"On the totality of the foregoing provisions, therefore, it becomes obvious
that although a person may be charged under a named offence listed in
schedule 1 to the Decree, such as "murder" and punishable under the criminal
or penal code, the acts constituting the offence arise from the actions or
conduct of the person in civil disturbances as provided for in Sec.
1(2)(a)-(c) in the Decree as reproduced above. The questions that now arise
are:
(a) Have there been any civil disturbances in Giokoo or Gokana?
(b) Were there any person (sic) or group of persons who by conduct or
negligence or otherwise howsoever in any way caused or contributed to the
breaking out of the disturbances ?
(c) Is there any person or group of persons holding political, social or
other belief who contributed to or participated in any way in the civil
disturbances?
(d) Did any movement or association; (howsoever) called led by any person or
group of persons contribute to or participate in any way in the civil
disturbances ?
(e) Is there any person or persons who encouraged, contributed to or
participated in the civil disturbances ?
(f) Is there any person or persons who were callously and violently killed
by any person or persons who participated in the civil disturbances ? "
5.5. The pompous legalese of questions 1 - 5 reflects that of section 1 of
the Decree (see App. p2 - 3). But that section merely defines the scope of
the enquiry to be carried out by an Investigation Committee. It has no
bearing on the definition of murder. By invoking section 1 the Tribunal
vastly extended the scope of the offence. Once it was proved that a death
was caused in the course of a civil disturbance anyone who in any way
contributed to or encouraged the disturbance could be convicted of murder.
By this unjudicial sleight of hand the principles of causation and joint
liability for murder which are well recognised in both Nigerian and English
law are converted into a broad test of guilt by mere association.
Association with the riot was enough for conviction as was association with
the leadership of Mosop. This is made explicit in a later passage at p43:
"To us, the issue is not who founded or originated Mosop or Nycop but who
used either to create the disturbances giving rise to the issue before the
Tribunal".
5.6. It is true that the Tribunal several times cited Nigerian authority on
such matters as the law of joint enterprise. For completeness I must give
the references
Idika (1959) SC NLR 241 at 242
Ofor (1955) 15 WACA 4 at 5
Obodo (1959) FSC 1
These cases are cited at pages 42, 53 and 55 of the judgement. The citation
from Idika is quoted at p70 - 71 of my report. None of them is authority for
the propositions relied on by the Tribunal. Nor could they be: they antedate
the 1987 Decree by many years.
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6. REVERSAL OF THE BURDEN OF PROOF. UNCHALLENGED EVIDENCE MUST BE TRUE
6.1. On the first day of my attendance at the Tribunal I had a short private
meeting with its 3 members. Mr Justice Auta told me that the Tribunal would
apply the Constitution and would require the prosecution to prove its case.
Since the very existence of the Tribunal was the negation of basic
constitutional right I was unimpressed by the first claim. It is now clear
that the second was equally false.
6.2. Although in acquitting Mitee the Tribunal observed that it was not
satisfied of his guilt beyond reasonable doubt it is clear that in the case
of the other defendants the Tribunal ignored the principle that anyone whose
guilt was not so established must be acquitted.
6.3. Recent English legislation has modified the right of silence. In
certain circumstances, where the accused has failed to give an explanation
of facts which incriminate him, that failure may be held against him. The
fairness of this reform is very controversial. But the Tribunal went much
further at p39 - 40:
"It is important to note that not only has Ist accused failed to refute the
assertion that "vultures" be killed; it is also to be noted that no meeting
in which it is said that members of Nycop gave instructions for "vultures"
to be killed has been denied. In any instance in which John Kpuinen.....is
credited with a statement at such a meeting, all that he says is that he was
not at a meeting where he made such a statement or that he was on leave of
absence. This issue of leave shall be considered at the appropriate time.
Where the order to kill is credited to the President of Nycop, Goodluck
Diigbo, there is always no categorical denial of that statement.Both Keenom
and Meabe are no outsiders but insiders of Nycop and Mosop. They mention
specific names and offices of persons at the relevant instances. One must
then ask where is Goodluck Diigbo, Otua Hart and others ? The truth is that
any unchallenged evidence is presumed admitted."
6.4. This passage and in particular the last sentence is a disgraceful
perversion of the rule of law. It means that anything done or said in the
absence of an accused and which he was therefore unable to refute could be
held against him. Thus unless Diigbo was called to refute allegations that
he had threatened the Vultures the evidence of those threats could be used
against (say) Saro - Wiwa. Again Kpuinen might deny that he was at a
meeting. But if he did not call any witness to challenge the prosecution
evidence of what was said at that meeting that evidence would be used
against him (see also 7.3, 8.1 and 10.4 -6 below). Logically it would not
matter how poor or incredible the evidence might be. Failure to refute it
would confirm it. It is one thing to say that silence may be some evidence
of guilt. It is quite another to say that it is an admission of facts
outside the knowledge of the defendant.
6.5. Furthermore although Saro - Wiwa had not given evidence the Tribunal
knew full well that he was challenging the prosecution case in its entirety.
Until mid - June when his chosen defence team withdrew in protest a number
of the prosecution witnesses had been strongly challenged on their evidence
by his counsel. His refusal to give evidence was in protest against the
unfairness of the proceedings. He had submitted to the Tribunal a 40 page
statement setting out his defence and specifically denying large parts of
the prosecution evidence. It may well be that the Tribunal was entitled not
to admit this document in evidence. But to assert that in his case the
evidence was "unchallenged" was simply a lie.
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7. REVERSAL OF THE BURDEN OF PROOF. PUTTING THE WORST POSSIBLE CONSTRUCTION
ON THE EVIDENCE
7.1. Another consequence of the rule that the prosecution must prove the
case is that the defendant must be given the benefit of the doubt in
interpreting ambiguous evidence. Yet the Tribunal repeatedly put the worst
possible construction on any such evidence.
7.2. VIKUE's evidence that Saro - Wiwa had said that heads would roll was
interpreted as evidence of his support for violence rather than as a mere
prediction:
" First accused accepted those who destroyed (Vikue's) house ie Nycop as his
boys and that he is privy to their destructive activities which symbolise
the emergence of the revolution in Ogoniland"(p36).
In any case VIKUE herself had not seen the attack on her house. She told the
Tribunal that she had heard from 2 of her cousins that:
"her house in Bodo had been destroyed by Nycop youths led by one Dr Owen
Wiwa, first accused's junior brother" (p34).
7.3. KEENOM's "sack letter" was in evidence. Dated 19 October 1993 it said
in terms that he was to be suspended from Nycop for 4 meetings because of
"your constant gross misconduct leading to the disruption of the
meetings...you are advised to purge yourself of conduct or action capable of
such disruption in your future attendance ...".
The Tribunal ruled that it had "no alternative" but to accept Keenom's
explanation for this letter - that it referred to his protests against plans
to attack Vultures (p40).
7.4. The Tribunal constantly stressed that Mosop and Nycop had planned the
killings. The attempt to demonstrate this involved some desperate reasoning:
"The fact that the bodies of the deceased were carried away by the rioters
and thereafter not seen is evidence that the riots had been planned before
their eventual execution" (p51)
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8. MURDER BY ELECTIONEERING ?
8.1. The combination of the extended definition of murder and the
presumption of the truth of the "unchallenged" evidence was enough to
convict Saro - Wiwa. At p41 - 42 the Tribunal ruled that it had not been
challenged that:
there were riots at Giokoo which led to the 4 deaths;
on 21 May election campaigning was unlawful;
Saro - Wiwa was not a candidate for the election yet he and other members of
Mosop and Nycop wrongfully organised an election campaign;
they "thereby congregated a large crowd of fanatical Mosop and Nycop youths
who rioted and caused the deaths of the four eminent Gokana leaders at
Giokoo"
the decision to "create a riotous situation" was made by members of Mosop
and Nycop.
8.2. This reasoning was also invoked at p45 - 6 where the Tribunal was
considering the case against Kiobel. After a similar analysis of the history
the Tribunal said:
"In the absence of any valid explanation we are left in no doubt that the
purpose was to set off the events and riots which occasioned the murder of
those leaders of Gokana."
8.3. Again one looks in vain in the judgements for any finding that any
accused had formed the intent necessary to be proved in a case of murder.
Nor was there any analysis of the evidence against each defendant on each
charge of murder. On the Tribunal's theory of murder such proof or analysis
were unnecessary since complicity in the riot was enough to convict a
defendant on all 4 murders.
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9. EMPHASISING THE MARGINALLY RELEVANT. THE CONVICTION OF KIOBEL
9.1. In my report I stressed that the prosecution case as set out in the
statements seemed to be consistent with Kiobel's claim that he was trying to
stop the violence (Rep 22.8 - 22.13; 23.15). So was the evidence at the
trial. I do not understand how the Tribunal came to convict him. The points
it stressed at p46 - 48 are as follows:
Kiobel claimed that he was at a meeting in Kpor till 2.30 but HASSO said
that Kiobel was in his office at 1pm.
Although he was not (on his evidence) told the extent of the trouble he went
to seek help.
He claimed that he asked HASSO to send help to Giokoo. But both HASSO and
GIADOM said that he had merely asked whether Saro - Wiwa had been arrested.
A M KOBANI said that after Kiobel had spoken in "soft tones" the youths
shouted "E - sho - be".
The Gbenemene did not confirm Kiobel's claim that the youths slapped him,
that they threw a stone on his neck and that he ran for his life
Kiobel claimed that his car was damaged. The Tribunal stressed twice the
(hearsay) evidence of a police officer that he had spoken to Kiobel's driver
who had denied that there was any damage (p18; p47).
Although Kiobel denied that he was a member of Mosop others, including some
of the defendants, said that he was. His own evidence demonstrated that he
was at more meetings than he had at first admitted.
His story that he had hidden in the bush after the killings was "strange and
absurd". Again hearsay was relied on: the Chief of the area where Kiobel
claimed to have hidden told the police that the owner of the hut had
"disappeared" (p18).
Kiobel "lied freely."
The detail of the evidence of the Gbenemene was at variance with what some
of the prosecution witnesses had said. His evidence was to be taken with "a
pinch of salt".
9.3. None of this amounts to very much. Some of the supposedly telling
conflicts of evidence might be due to genuine differences of recollection.
Even if Kiobel was lying on some points there was no clear evidence of his
guilt from the prosecution witnesses. When the prosecution were putting so
great and unfair an emphasis on membership of Mosop as a badge of guilt it
was hardly surprising that a defendant sought to distance himself from the
organisation. It was common ground that Kiobel was asked to return to Giokoo
by HASSO. The remarks made in "soft tones" were more likely to be pacific
than aggressive. In any event they were unheard by any witness. The
Gbenemene confirmed that Kiobel was under threat from the rioters. He had
originally been a prosecution witness. Plainly the prosecution had abandoned
him because his statement (App p30 - 31) was so favourable to Kiobel. But he
was no friend of the rioters: he had defied them by libating for peace. It
was never explained why Kiobel should have wanted to encourage a riot at a
gathering which was had been organised to honour him (see para 2.13).
9.4. The conviction of Kiobel demonstrates that there was no escape for the
defendants whom the Tribunal wished to convict. Admission of a senior
position in Mosop was evidence of guilt as was denial. This trap is seen at
its most deadly in the case of Kpuinen.
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10. COSMETIC ACQUITTAL. A COMPARISON OF THE CASES OF MITEE AND KPUINEN
10.1. There is no distinction of principle between the cases of these 2 men.
Neither was at the riot or alleged to have been a party to any violence or
threat of violence. Therefore each was in law entitled to acquittal. On the
other hand, applying the Tribunal approach of guilt by association with
Mosop leadership both should have been convicted. Indeed if leadership was
the criterion the case against Mitee might be said to be the stronger since
he was senior in Mosop to Kpuinen.
10.2. The arguments which were invoked for the acquittal of Mitee were
reversed and used against Kpuinen.
10.3. At p44 - 45 the Tribunal recounted points made by the prosecution in
Mitee's favour:
He was never considered a security risk
His lunch invitation to Saro - Wiwa had not contributed to the riots
He surrendered himself to the police
Even if Mitee had an inflated view of the importance of Mosop that was
irrelevant
Mitee had not been "fingered" by anyone as being at any meeting where
threats were made
There was "unchallenged evidence" that he was frequently late at or absent
from Mosop meetings.
10.4. However in the case of Kpuinen the Tribunal convicted. In his case the
Tribunal stressed the guilt by association argument.
"The individual affected need not be physically present or directly
personally participated (sic) in the act of civil disturbances; he is all
the same to be credited with the consequences of the civil disturbances and
answerable for them and their consequences."
10.5. Even the fact that Kpuinen had produced minutes of Nycop meetings to
show that he was not present at some of them could not help him. He was
still bound by their decisions (p50).
10.6. Again the Tribunal said at p53:
"when it was discovered that the game was up fourth accused (Kpuinen)
desperately went round to try to stop other rallies. He admitted he took
money from second accused (Mitee) so as to travel and notify others of the
cancellation of rallies. This is evidence of his direct involvement in the
organisation of their ill conceived rallies."
Any lawyer reading this passage may care to ask himself whether he has ever
seen a more perverse piece of reasoning in any judgement. There is no escape
for Kpuinen. The passages quoted at para 6.3. show that Kpuinen is to be
"credited" with threats made at meetings where he was not present. But even
his part in the cancellation of rallies is now said to be further evidence
of his guilt. Rallies at which he was absent and rallies that did not take
place because he helped to cancel them are equally grist to the Tribunal's
mill. Moreover, if cancellation is evidence against Kpuinen why is it not
evidence against Mitee who instructed that it be done ?
10.7. Again in a wider sense the basis of Mitee's acquittal tends to
undermine the convictions of all the others. I have demonstrated the
importance attached to the evidence of GBAA relating to the meeting on 20
May - albeit the Tribunal seemed unsure of what he had actually said (para
2.7). However Mitee claimed that GBAA attempted to involve him out of
vindictiveness (para 3.3). The Tribunal sidestepped the dilemma of
reconciling an acquittal of Mitee with an acceptance of GBAA's evidence in
typically unprincipled fashion:
"if indeed (GBAA) did threaten to undo him after the case, other people
might have heard the threat. The fact that the second accused called no
evidence to support such threat makes such evidence of no effect." (p45).
10.8. Of course any court seeking to do justice to the case would have
acquitted Mitee. But I do not believe that his acquittal shows any concern
for justice on the part of the Tribunal. There is a different explanation.
The prosecution had submitted that there was insufficient evidence against
him, thereby signalling to this tame Tribunal that the government which had
appointed it would accept his acquittal. At least one verdict of not guilty
was necessary in order to maintain a pretence of fairness.
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11. THE CASE AGAINST BERA
11.1. I have already commented that, assuming the truth of the evidence
against Bera, there may have been some basis for conviction in his case.
This of course is not to say that I believe him to be guilty. There is
simply no way of knowing whether the witnesses against him were telling the
truth. The Tribunal in convicting him stressed not only the evidence
outlined in paras 2.14 - 19 but also the difference between his statements
in which he had admitted presence at the riot and his denials in evidence
that he was there.
11.2 Again the Tribunal's approach to the case of Bera implies a reversal of
the burden of proof:
"(Bera) stated that he was arrested when he was sent by the leaders of his
community to print receipts for community levy. Were these facts true,
leaders of that community he was serving would have not have failed to come
forward as witnesses and vouched for his innocence" (p55)
This is nonsense. The truth or falsity of the community levy story had no
bearing on Bera's guilt. Why should his failure to try to prove it be held
against him ?
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12. A ONE SIDED APPROACH
12.1. All the points so far made assume that the Tribunal was right to
accept the prosecution evidence at its face value. I did not hear the
witnesses so I do not know how well or badly they gave evidence. However it
is clear that the Tribunal uncritically accepted every piece of prosecution
evidence which it referred to. There is no indication that it disbelieved or
even doubted anything said by any prosecution witness.
12.2. There have been for a number of years detailed reports of widespread
human rights abuses by the security forces in Ogoniland. Yet in the
judgement there is no suggestion that any organisation other than Mosop or
Nycop bore any responsibility for any disturbance or violence. Indeed the
judgement is as much a condemnation of Mosop and Nycop as of any individual.
Passages damning of Mosop and Nycop which I have quoted at 2.1 - 2, 7.2 and
8.1 - 2 are typical of the judgement as a whole.
12.3. It appears that with the possible exception of HASSO there was not a
single independent witness called by the prosecution. Their witnesses fell
into 2 categories: senior members of the Ogoni community and disaffected
youths who had been members of Nycop. As to the former a number of them such
as Dr Leton and A M Kobani had made statements which reeked of hatred for
Saro - Wiwa. It is plain that much of their evidence concerning Mosop and
Nycop was simply rumour and hearsay. The evidence of VIKUE that her house
had been destroyed by Nycop is a good example.
The only first hand evidence cited by the Tribunal that Mosop or Nycop had
planned violence came from youths such as KEENOM and MEABE. They in their
turn were alleged by the defence to have been trouble makers who had pursued
their own violent agenda. The Tribunal made no attempt to consider whether
the prosecution evidence it had heard was genuine and impartial. Claims that
it might not be were dismissed with specious arguments (eg para 10.7).
12.4. The Tribunal ignored an important difference between the evidence of
HASSO and VIZOR as to whether anything had been said in the Ogoni dialect
when Saro - Wiwa's car was stopped near Giokoo (see paras 2.11 - 12).
12.5. A particularly disturbing feature of the case was the uninvestigated
allegation of bribery. Charles Danwi and Nayone Ankpa had made statements to
the prosecution claiming that when Saro - Wiwa's car was stopped Giokoo he
told his followers to "deal with" the Vultures. However in early 1995 each
swore an affidavit claiming that he and a number of other witnesses had been
bribed by some of Saro - Wiwa's opponents to give false evidence.
12.5. At a bail application on 21 February Danwi's affidavit was read to the
Tribunal by the defence in order to try to demonstrate the weakness of the
prosecution case. Among those whom Danwi implicated were A M KOBANI and
PRISCILLA VIKUE who he claimed had offered bribes and 6 other witnesses who
had accepted them. The latter included MEABE and KEENOM. In the event
neither Danwi nor Ankpa gave evidence for either side. It is of course quite
impossible to tell where the truth lies. But the disturbing feature is that
the Tribunal had before it an allegation of bribery which went to the very
root of the case. Yet it made no attempt to investigate that allegation and
showed no concern that the witnesses who had made it were never called by
the prosecution.
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13. OTHER DEFENDANTS
13.1. As yet all my efforts to obtain a transcript of the judgement in the
second trial have failed. One of those convicted at that trial was Nordu
Eawo. At para 2.17 I referred to the evidence cited by the Tribunal that he
had offered to take T B Orage to safety. This, suggestive of innocence
rather than guilt, is the only evidence relating to Eawo in the papers that
I have seen. I do not know on what basis he was convicted. Press reports
suggest that those in the second trial who called credible alibi witnesses
were acquitted whilst those who did not were convicted.
13.2. It has been widely reported that another 19 defendants are to be tried
by the same Tribunal. I have recently seen the charge sheet and summary of
the evidence against them. A typical charge reads :
"(19 defendants) being part of large crowd engaged in a riot on the 21st day
of May 1994 murdered Chief Theophilus Orage at Giokoo Gokana Local
Government Area of Rivers State while attending a meeting of the Gokana
Council of Chiefs by setting on members of the meeting and attacking them
with dangerous weapons thereby causing this death contrary to section 316 of
the Criminal Code."
13.3. My underlining of 2 passages demonstrates that once again guilt by
association will loom large. The case depends entirely on identification.
Again MEABE, KEENOM and KOBANI are among the principal witnesses. Kobani
identifies no less than 9 out of the 19 defendants
For MOSOP-UK activities contact:
Mrs Gbenewa Phido MOSOP-UK President 0171 737 1550
Harrison Neenwi Secretary General MOSOP-UK 0181 678 9605