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KWENU! Our culture, our future |
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Open Letter to Dele Giwa
MAX GBANITE
New Jersey, USA
November 5, 2004
As controversial and insensitive as this letter may appear to be, kindly keep an objective mind and probably at the end you may understand why I chose to write you in the first place. October 19 2004 made it exactly eighteen years (18yrs) since you left this world under a very mysterious accident caused by an explosion. Trained, untrained and pedestrian investigators have given accounts of what really happened, some said that it was a letter bomb, parcel bomb and others even said that it was cooking gas explosion.
For me and many others, what is very important if you read this letter is to assist us with answers to certain disfigured truths and misinterpretation of facts being peddled as truth by certain section of the media and professional traducers, to the extent that some Nigerians have been convinced without facts, evidence and beyond reasonable doubts that your death was caused by a letter-bomb parcel allegedly sent to you by Brig. Generals Haliru Akilu and Kunle Togun (both retired from active service) under the orders of His Excellency General Ibrahim B. Babangida, GCFR, the then Military President of Nigeria. These untruthful allegations are based on assertions made by one individual alone: your bosom friend, colleague and London Bureau Chief of your magazine, Mr. Kayode Soyinka.
May I ask you some pertinent questions about life after death: Are you in heaven or the other place that most Nigerians, especially some of the current politicians -- based on their undemocratic fairness -- will be sent (i.e. hell)? Well, wherever you might be, I pray that you or your guardian angels would read this letter.
Our country Nigeria has finally embraced quasi-democracy. Instead of being elected into offices by their constituencies, people are appointed or selected to represent their constituencies, and it is working perfectly well -- instead of the globally recognized and practiced independent three arms of government in existing democracies (i.e. Executive, Legislative and Judiciary). The President, Chief Olusegun Obasanjo, GCFR, guided by his advisers has added a Nigerian dimension by practicing independent one-arm and two twisted and dependent arms of government. He is quick to act when the judiciary proclaims victory for the government after being arm-twisted and judges threatened, but ignores the same judiciary when the ruling is in favor of the masses; in this case, the judge refuses to be cowed. According to media reports, he uses force to get the legislative arm to pass what the masses call “evil bills,” and when the masses complain he quickly gets into his private plane and travels out of the country or abuse them on media-chats.
I could go on, but I am sure Chief Bola Ige must have addressed this issue during his reunion party in heaven (my assumption) with his lovely wife, Justice Atinuke Ige, who abandoned Nigeria out of frustration because of the mischievous way the earthly trials of Bola’s killers were handled. The Oduduwa people have refused to acknowledge that they conspired (Afeniferee and Yoruba Elder’s Council) to kill Bola Ige. By act of omission or commission, they are joining him gradually. How was the welcome party for Chief Sunday Afolabi? Even Justice Atilade Ojo who presided over the release of Senator Omisore and all those accused of killing Bola Ige, lost his beautiful wife and may soon join her -- if Professor Wole Soyinka’s alleged curse continues to work. How about Dr. Harry Marshall and Chief S.K. Dikkibo, are they still clamoring for a South-South leadership? Nigeria is still puzzled by their deaths and the killers cannot even be pointed out by babalawo, prayer mallam, or Christian overseers. The police are still looking for their killers. The SSS has probably closed their files and are making Dim Chukwuemeka Odumegwu-Ojukwu their main focus!
Thank God, General Ibrahim Babangida is not the President to be accused of all these killings the way he’s still being pestered with your death. Who knows, maybe when President Olusegun Obasanjo leaves office in 2007 (i.e. if he agrees to leave), these brave cowards will start accusing him.
Nigerians and I in particular would like to know what kind of reception General Sani Abacha, GCFR received from the Nigerian eminent persons the day he arrived. How did General Shehu Musa Ya’Ardua react to him? Is Gen. Sani Abacha regretting leaving President Olusegun Obasanjo behind? Do you know that his family is still being persecuted by a government that preaches, but does not believe in the creeds of Christian forgiveness? Even Bishop Sunday Mbang preaches against forgiveness; I wonder what will befall him when he gets to Saint Peter’s gate for his Judgment and Our Lord Jesus Christ appears to hear him (Mbang) asks to be forgiven his earthly sins. The funny thing about Abacha’s financial saga is that Nigerian media are suggesting, that probably known or unknown to President Obasanjo, that some members of his family are allegedly involved in all sorts of shady government deals and, even act as contractors more than the Abacha’s. We will know all the details after Obasanjo’s tenure, but I will not be the one to tell you then.
What about Chief MKO Abiola, how is he doing? Is he still seeking his mandate? What happened on the day he arrived and on the day he met Sani Abacha? Are they both in the Islamic side of heaven or is everyone regardless of their religion in the same place? Is there also a separate heaven and hell for the various ethnic groups that make up Nigeria? How about the flamboyant Dr. Chuba Okadigbo? Has he met Chief Festus Okotie-Eboh, the primus inter pares of flamboyancy? I am sure they will both get along. Have our founding fathers, Dr. Herbert McCauley, The Right Hon. Dr. Nnamdi Azikiwe, Sir Ahmadu Bello, and Pa Obafemi Awolowo met and asked Sir Tafawa Balewa, Dr. Akanu Ibiam, Dr. M.I. Opara, Dr. Samuel Grace Ikoku, Chief S. L. Akintola, Sir Kashim Ibrahim, Alhaji Waziri Ibrahim, Alhaji Bakin Zuwo, and other eminent persons to convene a Nigerians-only Sovereign National Conference in heaven, or are they still waiting for Pa Enahoro and Senator Adesanya to arrive?
I purposely did not ask about General Murtala Muhammed and Major Chukwuma Nzeogwu because I have a feeling that they are still in heavens Court of Appeal, seeking for divine overturn of their untimely death, so that they can return back to Nigeria and put the country on the right path again, especially after hearing firsthand from Maj. Gen. Tunde Idiagbon, GCON when he made his triumphant entry. It would be interesting to know how their appeals go if possible. Please tell them that their bosom friend and brother Olusegun Matthew Obasanjo is now the President (assuming they don’t know already) and that he is indeed being accused in certain quarters of creating a wonderful labyrinth of intrigues of political mess, loaded with kegs of gun powder, capable of disintegrating the country if allowed to implode; the same country they tried to build into a nation.
What of General J.T.U. Aguiyi-Ironsi and Lt. Col. Fajuyi? Do they get to mingle with Brig. General Pam, Ralph Shodeinde, Col. Zakary Maimalari, Kur Mohammed, and all those gallant officers killed in 1966? What do they do when they see Nzeogwu at the dead officers’ mess?
Having posed all these questions let me brief you on what’s happening in Nigeria as quickly as I can. I have already mentioned that we are now under what Alhaji Wada Nas calls Democratic-Dictatorship; where people are selected into office and not elected. What is referred today as Independent National Electoral Commission (INEC) in name has become Compromised Corrupt National Election Commission (CCNEC) in action. Nigeria now operates GSM phone systems with little problems like not being able to finish your calls before the call terminates; the GSM operates like politicians, the calls are selected at random and the carriers are making tonnes of money which would be eventually left behind after death.
President Obasanjo’s government have reduced the pride of the nation by taking third price instead of the coveted first price in the highly contested most corrupt nations in world contest, organized by Transparency International, an organization you are familiar with when you were here. The same organization knows that Western countries collaborate with Nigeria and other highly corrupt nations to defraud their respective systems. President Obasanjo is really working hard at reform; the results will hopefully manifest if Nigerians are steadfast and committed to the cause.
The due process intervention established by President Obasanjo is being violated by his government, for instance; Ajaokuta Steel Plant contract was awarded to SOLGAS, a furniture making company without due process, millions of dollars doled out upfront to the company, and suddenly the government realized that Fela Anikulakpo-Kuti was right when he described such occurrence as ‘suegbe.’ The same government without instituting a probe has re-awarded the same contract to an Indian company, ISPAT; hopefully they are a steel manufacturing company. This is just a sample of many wonderful things that are happening. By the way how’s Fela doing? It must be fantastic reuniting with his brother, Prof. Olikoye and their parents in Oduduwa Section of heaven.
There are so many normal and abnormal things happening to our refineries, especially the shady deals about contracts for maintenance-turn-around which stinks more than a rotten dead body that I can tell you in this letter, but since there might be delays in forwarding it to you through express mail, I have resolved to allow those whose time to join you have come, to relay the information.
As I said earlier, there is indeed a reason why I decided to write you after many years of your passing to glory. I recently wrote an article titled ‘IBB: THE MAN IS STILL STANDING. Yes, indeed he is still standing and like President Obasanjo is being urged and pressured by various groups, including this writer to come back and contest the Presidency of Nigeria in 2007. Please don’t allow your bones to turn in your grave, the bones may fragment since your soul and spirit is no longer with them; however, should you choose to do so, it’s okay too, Afterall the bones are yours, but read my letter first before embarking on that. NO INSULT INTENDED.
After my article was published, I received many letters acknowledging support for stating the facts as events in the country indicates. However, there are traducers or highly intellectual critics that saw it different. As a matter of fact, I hardly read what others write or say about me, if the issues are personal, but a friend of mine read one written by a German-based gentleman he simply referred to as an “intellectual idiot” masquerading as a critic. I quickly protested the coinage because I am yet to meet one who is an intellectual and an idiot at the same time. But my friend averred that it took me eight internet pages (it’s the new wave of publishing) to enumerate the achievements of General Ibrahim Babangida so eloquently; and it took the supposed critic twenty Internet pages of Shakespearean-Nobel Prize-contender style of writing to call me a liar because he did not agree with my opinion; yet, he failed to argue effectively against the raised points.
I must disagree with my friend for the name-calling. I feel that one has the right to differ on personal opinions without being combative and aggressively insulting to each other by keeping the discussion on issues. My point, dear Mr. Giwa, is that the journalists you left behind in Nigeria are no longer sincere when reporting events. Due to hunger and extreme economic hardship, they have been compromised to the extent that they now accept financial inducements to assassinate with atrocious mutilation of anyone they are paid to work on. They don’t even investigate their stories nor do they give one a chance to defend what has already been published.
Please don’t scream at them; most often they are not paid their salaries by the owners of the newspapers and magazines they work for. It would have been fun to list the names of these media houses that owe salaries to their struggling writers but, in the interest of why I am writing this letter, let’s forget them for now.
Mr. Dele Giwa, your death and how it happened is a very dastardly act, and many Nigerians including this writer will continue to pray for your killers to be apprehended or be judged in God’s way, Amen. Having said that, I must inform you of what the then Deputy Inspector General of Police (DIG) Reverend (Dr.) Chris Omeben who investigated the case (i.e. the explosion that killed you), without any interruption from the government, asserted in his book “In thy hands O’ God,” that after a thorough investigation of the case he could not link your death to either Brig. Generals Haliru Akilu and Kunle Togun.
He substantiated this claim on page 135 of his book when he wrote, “That the parcel was brought to Giwa, immediately Soyinka excused himself to the toilet and before he went far, the sound came off. He asked himself, why was it that Mr. Soyinka was not wounded or even killed? The answer to him is that Mr. Soyinka may have gone down just before the explosion. Again, why did he excuse himself immediately the parcel was brought? As a visiting colleague, he ought to have been curious about the parcel, instead of excusing himself immediately the parcel was handed over to Dele Giwa. Rev. Chris Omeben reasoned. He examined the scene again and noted that everything in that area within a certain level above the ground was smashed, including Giwa himself who was sitting on his study chair. It therefore followed that if Soyinka was still standing or moving towards the toilet before the bomb went off, he could have been caught before he took cover. In this case, either he sustained serious injury or he would be killed instantly like his host. Therefore according to Chris, Mr. Kayode Soyinka is suspect number one.”
The same Kayode Soyinka, your friend and the lone witness in describing his survival and the blast to BBC correspondence and other media houses said, “I was having breakfast with Dele Giwa together, sitting at arm’s length from each other when the parcel was delivered. The parcel had the markings of Presidential seal, then as I got up to use the bathroom, the explosion happened, the intensity of the blast was such that the table was blown up, Dele’s two legs were virtually blown off, a big fire ensued, the ceiling was blown up…..I was thrown to the other end of the room unconscious, Dele Giwa’s pajamas, the same fabric and color as mine was on fire, the room was filled with smoke…Then I got up, ran out of the room….. met Giwa’s wife in the adjoining room and told her what had happened, before running outside to call for help.” Then on another Press briefing the same man Kayode Soyinka stated that, “Mrs. Dele Giwa sustained injuries on her hands when she tried to force-open the glass doors to the study where the explosion occurred.”
The Police bomb experts who were later allowed to you house, more than ten days after the explosion occurred, gave their assessment of the explosion; the bomb blast was centrifugal, it blew down part of the ceiling, the windows were shattered, the bathroom windows shattered and the windowpane and steel bent, and the door to the bathroom blown apart. These excerpted reports and the assertions by Kayode Soyinka, and the fact that the State Security Services (SSS), headed then by Colonel Kunle Togun and the Directorate of Military Intelligence (DMI), headed then by Colonel Haliru Akilu were part of the submitted evidence by the famous lawyer Gani Fawehinmi (SAN) when he sought MANDAMUS to prosecute the two military men.
Gani’s evidence was based on hearsay rendition from Kayode Soyinka of what happened. It is also important to tell you what your first son Billy said to the press. He asserted that the security mallam guarding your house gave him the parcel which the mallam claimed to have received from a motor-cyclist. Then your business associates at Newswatch in narrating their own version said that the parcel was delivered by armed men in a 504 Peugeot car which the security mallam refused to collaborate. Nevertheless, Gani went to first, the High Court from there to the Court of Appeals, and to the Supreme Court. The first two Courts rejected his request for MANDAMUS (Independent Prosecution of the Security heads). The Supreme Court set aside the Court of Appeal’s ruling and directed that the issue be referred to the High Court and should be heard by a High Court Judge except the Chief Judge of Lagos State.
The security heads retained the services of legal luminary, Chief Rotimi Williams; at the Lagos High Court hearing, Gani lost. His evidence were said to be insufficient to establish a prima facie case to warrant the trial for murder of the two officers. The court described the information which Gani presented as evidence for prosecution as ‘hearsay’. The evidence in Gani’s hands were as follows: Statement from your son Billy, statements from Kayode Soyinka, statements from your wife Funmi, medical reports of your death, burial documents, and a letter from you to him dated October 17, 1986 informing him of the request from the security services to meet with them. Please why didn’t you inform him of other times you have met the same security agents, meetings which are recorded by the agencies? What was so significant about this particular meeting? What is very troubling to many people is that Gani ordered that your house be sealed from everyone including the Police. As a matter of fact, it took special dialogue for him to allow the Police to conduct a preliminary investigation of the crime scene.
Your attorney Gani never allowed your son, wife and business associates to be interrogated by the Police, even to date, and that worried Dr. Chris Omeben and many others. Kayode gave what the Police investigators referred to as conflicting statements and when they came back to confirm some of his assertions, he fled the country immediately. When they approached Ray Ekpu who took over command to produce Kayode, he wrote the Police a letter whose paragraph reads; “I am sure you’re aware that Mr. Soyinka does not work here, he works in our London office and he only came here on an official business which would not have lasted beyond one week. But because of the tragic incident which affected his health, he stayed here for about a month, leaving the office unmanned for the period. You may wish to reach him through the address of our London office.” Please Dele, does this letter indicate the concern of colleagues who are gravely mourning your death and needed to assist the Police with their investigations?
One day your partners came to their senses and on the front page of Punch newspaper of Wednesday November 5, 1986 was a headline, ‘Twist in Giwa’s Murder Mystery: NEWSWATCH DISOWNS FAWEHINMI,’ by Innocent Anyim. The story reads:
“Newswatch directors have dissociated themselves from Chief Gani Fawehinmi’s move to prosecute two military officers for the alleged murder of Dele Giwa. In an emergency press conference addressed by the Acting Chairman of the Board of Directors, Alhaji Abdulaziz Ude, and attended by all other directors yesterday, the Newswatch said Chief Fawehinmi’s action was hasty, ill-timed and capable of aborting police investigation into the incident: We wish to state categorically that Chief Fawehinmi does not have our authority or that of the family to proceed on what we consider a hasty and ill-timed action, the directors said…what Fawehinmi has done, they continued, ‘is jumping the gun. His action can only have an effect of aborting investigations and depriving Nigerians of the opportunity of hearing the results of police investigations.”
How then does any right thinking person expect the same government that Gani jumped the gun and accuse of killing you, to constitute an impartial tribunal to investigate the manner of your death; without being accused of influencing the same tribunal. It doesn’t really make sense. The court proceedings on this took three years to resolve without undue influence by the Military-led government. The independence of the courts then can be said to be superior to that of today’s courts under democracy.
The first case, suit M/51/86 was on November 7 1986, heard in the High Court by Chief Judge of Lagos State, then, Justice Candido Johnson. The Chief Judge dismissed the application on the grounds that applicant (Gani Fawehinmi) had not established a prima facie case for the granting of the application. The CJ wrote, inter alia:
“It appears to me important to appropriate that the need to endorse any certificate (for or against private prosecution) would only arise when a decision has been taken one way or the order. Here as it appears no decision has yet been taken……It is necessary to remind ourselves that an A-G or DPP or any other officer of the A-G’s department in exercising the power conferred in section 191 of the constitution performs a quasi-judicial function. The known procedure is for the police who has a public duty so to do to conduct a detailed investigation into a crime committed and submit the report of such investigation to the Attorney-General or any of his officers to enable them consider and decide on the merit of the report so as to determine the justification for undertaking a prosecution or declining to. It is conceded that in the appropriate circumstances the report of investigation by a private prosecutor may be useful. In carrying out this great and complex assignment the AG or DPP or any member of the staff so delegated, is not expected to act on any rule of thumb. He is not expected to be the product of a solid and judgment taking account of the provision of section 191 (iii) of the Constitution besides the evidences available to it.
How do we construe the statement credited to the DPP? I have myself had the privilege of going through the materials submitted to the DPP and made available to the court. I must say it appears one sided as nothing is there to show what the account of the proposed suspects are, to provide a balanced view of the accusation.
If therefore in that situation, the DPP defers the exercise of his discretionary power, he would, in my considered view appear to have exercised that discretion judiciously. Refusal is not the same as deferment. It is an applicant on a refusal that qualifies to apply not an applicant whose request is deferred. After all there is no time limit for the exercise of power vested on the A-G or DPP to prosecute, although one would expect such power to be exercised within a reasonable time.
Even if one considers the reasonableness of time, I would say that the incident that gave birth to the death of the late Dele Giwa is not only unique in its form but also complex and would require sufficient time to conduct detailed and balanced investigation, a report on which the appropriate authority would reasonably act. The timing here appears hasty and premature. It appears impulsive without giving reasonable time and chance for a detailed and balanced investigation into this sordid incident. In the circumstances and having regard to the review made above, it is my ruling that this (ex-parte) application is misconceived and it is therefore dismissed. Leave to apply for mandamus is hereby refused.”
Gani Fawehinmi was undeterred by the above decision of Chief Judge of Lagos State, then, Justice Candido Johnson. He went to Court of Appeals and the judgment was upheld. The Court of Appeal then consisted of Idris Kutigi JCA, Owolabi Kolawole JCA, and Nnaemeka Agu JCA; their points of determination were:
(a) Whether the appellant (Gani Fawehinmi) had made out a ‘prima facie’ case to entitle him to the leave sought from the High Court. (b) Whether the learned Chief Judge was right in law in dismissing the appellant’s ex-parte application. (c) Whether the Appellant had ‘locus standi’.
Nnaemeka Agu JCA, as he then was after carefully examining the issues with his fellow Justices of Court of Appeal (JCA) all in agreement, wrote on their behalf the following:
“The result of all I have just said is that the ‘locus standi’ of the appellant must have to be examined and decided in the light of Section 6(6) (b) of the 1979 Constitution. He can only have a locus if the matter involves a determination of his civil rights and obligations. In this country, the result of all the cases is that the common law concept that a person who has a locus and can sue is only one who has a legal right, or whose legal right has been adversely effected or who has suffered or is in imminent danger of suffering an injury, damages or detriment personal to himself. This is the result of all the decided cases including Adesanya’s case (Supra). Thomas and Mrs. V. Olufosoye (1986) I.N.W.L.R.669….Indeed the definition of mandamus in section 18(5) of the High Court Law of Lagos State contemplates the existence of such personal and private interest before the order can be issued. It provides as follows:
‘For the purpose of this section ‘mandamus’ means the order of mandamus made action commanding the fulfillment by a person of a quasi-public duty in which another person has a personal and private interest. Such personal and private interest has not been shown. It is clear that neither the fact that the appellant was a friend and counsel for the deceased, as he deposed to in his affidavit in support, nor the fact that he is seeking to be a private prosecutor if the respondent takes action under Section 342 of the criminal procedure law for what I have said, is sufficient to give him a ‘locus standi.’
‘For this reason, I should strike out the appeal on the ground that the appellant has no ‘locus standi’.”
On further examination of other issues, he wrote:
“Although at the stage, what is being sought is not the order of mandamus itself but leave to apply for it, the court cannot ignore the fact that in the end, if the application for the order is made, its grant must have to be made discretional….” He went further to state that, “On these principles, it would be wrong to say that the function of the learned C.J at that stage was merely to be satisfied about compliance with the rules….. I believe that the learned C.J was right. For the general rule is that before the applicant is entitled to the order, he must have addressed a direct, distinct and specific demand or request to the respondent to do a duty imposed upon him by law and the respondent must have unequivocally either expressly or by necessary implication, manifested his refusal not to comply….The right of a private prosecutor to prosecute under Section 342 of the Criminal Procedure Act is completely subordinated to the duty, function and right of the Attorney General in that behalf. This point is underscored by the powers conferred upon him to, at any stage of the proceedings, take over and continue with any prosecutions, including one commenced by a private prosecutor. As it is so and in view of the guarantee of personal liberty in the constitution, the decision to prosecute must be a serious and solemn function, which the Honorable Attorney General might not allow himself to be stampeded into.”
The above explained why the Court of Appeals struck out the case as lacking ‘locus standi’.
Chief Gani Fawehinmi refused to accept the ruling and filed case SC.43/1987 in the Supreme Court, asking the apex court to determine:
(a) Whether the appellant had a ‘locus standi’. (b) Whether the appellant had established a ‘prima facie’ case entitling him to leave to apply for mandamus; and (c) Whether the Court of Appeal considered and determined the merits of the substantive application for mandamus on the consideration of the ex-parte application for leave and if so whether the approach of the Court of Appeal was wrong.
The lead judgment on the case was written by A. O. Obaseki JSC (Justice of the Supreme Court). It took him about thirty-two pages of presentation, and in it he allowed the appeal of the appellant and set aside the decisions of the Court of Appeal and the High Court. He also granted leave for the appellant for an order of mandamus. Not that the Court of appeal and the High Court erred in their respective judgments but because, the Supreme Court observed that they focused on certain issues not yet before them. Justice Obaseki, JSC in his judgment stated:
“The Court of Appeal erred in law in striking out the appeal on the ground that the appellant has no locus standi.” (The Particulars of Error; the learned Justices of the Court of Appeal misdirected themselves in law and thereby came to a wrong conclusion when they said): “Therefore a private person who takes out a mandamus to compel a public functionary to prosecute or to give himself a fiat to prosecute must first show that he has a locus standi.”
Obaseki JSC went further: “The learned justices of the Court of Appeal erred in law in considering and determining the merits of the substantive application for mandamus (yet to be filed) instead of restricting themselves to the consideration of the ex-parte application for leave to apply for mandamus which was the matter before the High Court in relation to which an appeal was lodged.”
Other JSC members at the time Mohammed Bello, then Chief Justice of Nigeria (just died last week); Kayode Eso, JSC (rtd.); late Augustine Nnamani, JSC; Muhammed Lawal Uwais, JSC (currently the Chief Justice of Nigeria); Abubakar Wali, JSC (rtd.); and E. Babasanya Craig, JSC (rtd.) who went along the line of judgment essayed by Obaseki, and was clearly articulated by Craig JSC on page thirteen (13) of his judgment, he wrote:
“In regard to the issue of prima facie case, Chief Fawehinmi has stated that a prima facie case is made when an applicant brings the application in the form required by Order 35r.1 of the Lagos High Court Rules, and shows due compliance with Section 342 of the Criminal Procedure Law. This is not quite right. In my view, a distinction should be made between making a prima facie case to the DPP to enable him endorse the information under Section 342 of the CPL and making a ‘prima facie’ to the court to enable the court grant leave to apply for an order of mandamus…. In the first instance, when the applicant presents to a law officer all the documents (i.e. information…. and recognizance) required to be produced under Section 342(a) and (b) of the Criminal Procedure Law, he has thereby made out a case and is entitled to demand that the law officer should endorse the information as required by law…. But in the latter case, an applicant does not make out a prima facie case merely by presenting to the court documents which he had tendered to the law officer. To make out a prima facie case before the court, the applicant should in my view, disclose in his affidavit sufficient facts which would make the court want to hear the other side. The facts disclosed would of course depend on the peculiar nature of the application. But the court remains the sole judge of whether not sufficient facts have been disclosed to warrant the other party being called upon. In all this, the court is guided by its judicial discretion.”
And the highly respected Justice Kayode Eso followed with this averrement: Nnaemeka Agu, JCA (who later went to the Supreme Court) referred to this and said (of course with the constraints of the earlier decisions of this court), ‘It is this public interest and zeal that complicate the problem of courts in such a case (such as the instant one). Yet what the justice courts are bound and have sworn to administer is justice according to law, completely devoid of bias or sentiments…. I agree that neither bias nor sentiment should filter into justice. Indeed, once that happens, it ceases to be justice, yet the interpretation placed by the courts, once it is non-biased, non-sentimental should be broad enough to bring out the true essence of justice according to law. A narrow interpretation, straight-jacketed on the fear of a judge not being a legislator, into the confines of words which might even be equivocal, is, with respect, a negation of the true essence of justice’.
Simply put, the Supreme Courts directed that the case be returned to the Lagos High Courts, but that the Chief Judge of Lagos State who heard the first case must recuse himself, while another Justice hears the case. This argument was further elucidated by Babasanya Craig, JCS who wrote that:
“In conclusion, I hold that the appellant has failed to make out a prima facie case for leave to apply for an order of mandamus and his application for such order is refused. In the result, the appeal fails and it is dismissed.”
As directed by the Supreme Court your attorney Gani Fawehinmi took the case back to Lagos High Court, presided by Justice Longe whose judgment was announced on February 23, 1988, as reported by The Guardian Express of same day under the caption ‘TOGUN, AKILU CAN’T BE TRIED-COURT RULES.’ “The two army security officers, Col. Haliru Akilu and Lt. Col. A. K. Togun, charged with the murder of Dele Giwa, cannot be tried, an Ikeja high Court ruled this morning….for seventy five minutes, Justice Longe based his squashing order on the following:
The encounter between the security officers and the late Dele Giwa shortly before his death, happened while the security officers were performing their duties, adding that the trial cannot therefore be based on that…..He however observed that Mrs. Fadayomi needed not have filed any charges against the security officers when she had satisfied herself that the information supplied to her disclosed no offence against the accused….the Attorney General should have entered a ‘nolle prosequi’ or withdraw the charges against the accused.” The Justice further said that, “the Attorney general did not oppose the objection raised by counsel to the ‘accused’ persons, Chief Rotimi Williams, on the ground that the information was filed by private prosecutor when the information had not been completed and especially when the ‘INFORMATION IMPLICATED ONE OF THE PROSECUTION WITNESSES’ that what the prosecution should produce should include evident information that the ‘accused’ killed the deceased, that the killing was unlawful and that the evidence to be adduced must be cogent to the linking of the killing of dele Giwa…..there must be certainty in the evidence available for the prosecution of the two security chiefs…...that he therefore admit the objections raised by Chief Rotimi Williams for the ‘accused’ that the proof of evidence before the Court was mere HEARSAY…. Based on the evidence available before the court, it will be an abuse of the process of court to call the two security chiefs for trial. The information is therefore quashed accordingly.”
The information on the whole mandamus appeared finished since your attorney, Gani Fawehinmi never appealed against this judgment. He could have opted for libel, in which case he must be commanded by the Court to present his chief/lead witness; in this case Kayode Soyinka, however, he opted not to do so, and probably fearing that Kayode Soyinka’s testimony may not hold water. Therefore, his attempt to bring up the same issue at the Oputa Panel was legally-childish, ridiculous, and out rightly mischievous in character. This kind of legal antecedents may have informed the decision reached by the Supreme Court not to open the case. As clearly stated, he could have appealed Justice Longe’s decision or file for a libel against the duo.
Mr. Giwa, The single evidence your lawyer based his accusation on, was supplied by your friend and London Bureau Chief, immediately after the explosion that killed you, therefore the following questions are indeed begging for answers and, I and many Nigerians need your assistance in resolving them:
(1) Kayode Soyinka was the only man on record with you at the time of the incident; why should what he claimed to have happened be accepted or believed? By virtue of being alone with you, he becomes the principal suspect, yet, he refused to submit himself for additional interrogation by the Police, instead he fled to London, where, according to your partner Ray Ekpu is more important than resolving the more serious issues about the explosion that caused your death.
(2) His earlier statement to the world was that he was deaf from ear-perforation resulting from the blast; how did he converse on the phone with the press, especially, the BBC correspondent? Who called who on the phone first and why was his information to BBC in conflict with the one given to Nigeria press? Why did he run away without trace from Nigeria and who is he hiding from? Your Attorney Gani Fawehinmi could have put him into protective custody if his life was in danger.
(3) Investigators suggested that you may not have opened the parcel before it exploded; Guardian Express of October 22nd 1986, published in the front page ”New Clue….could have been a time bomb or remote control.” If it was timed, the explosion must certainly contain remnants of a watch or small clock; if this is not the case, it must then be remotely controlled, and if that was the case, is it possible that that parcel was a rehearsed cue for your friend Kayode to leave the scene before the detonation because…
(4) Kayode narrated that the intensity of the blast was such that the table was blown up, Dele’s (your) two legs were virtually blown, a big fire ensued, there was smoke everywhere, the ceiling was blown up plus all other damages, yet, he was having breakfast with you and sitting at arms length to be able to read the inscription on the envelope and observe the Presidential Seal. If that was the case, how come Kayode never sustained any other injuries except the bursting of his ear drums which miraculously healed within hours, enabling him to have full press interviews….it doesn’t really make medical sense; he claimed to have been thrown to the other side of the room and even became unconscious. Yet, he rushed out of the room to meet your wife in the sitting room, on one account he said that she was rushing to your study, and on another account he said that she was sitting down; and your son Billy said that he (Billy) was with your wife (his step mother) discussing something when Kayode emerged. And Kayode in the same unconscious state of mind was able to rush outside to call for a taxi to help take your body to the hospital; this really sounds like mixing Egusi, Draw, and Kuka Soup together….the flavor is very strange.
(5) It has also been suggested by explosion experts that Kayode probably, noticing the excitement on your face for having received a parcel supposedly from the President, quietly moved to a corner and activated the bomb which he could have planted in your favorite sitting place, since he was your guest for some days before the incident and, that of course explains why he sustained only ear perforation without any body injury caused from collateral damage of the explosion. It is still too simple to simply dismiss and attribute his not sustaining any other injuries to act of miracle. Even the legendary Nigerian overseer’s don’t intend to give him that credit.
(6) In the sketch version of the BBC interview, Kayode was quoted as saying “When I saw him, it was apparent that the bomb must have had a major impact on his two thighs. I mean, that is obvious partly because of the way he held the brown envelope, it was directly on top of his thigh.” Yet, he was unconscious, and conscious at the same time and to make such close observation as to the placement of the envelope on your laps, he must be sitting very close to you, therefore, had he been sitting there when you opened the envelope potentiating the explosion, he could have been killed too, except if the theory of an already planted bomb is to be believed.
(7) Another troubling episode occurred at your gate before the delivery of the parcel. On live television Gani sponsored a rendition of what happened on that fateful Sunday morning; the rehearsal indicated that a car from which your gateman collected the parcel from, parked on the other side of the road and that your gateman crossed the road to collect the envelope. Please is this normal of a security-gateman to do, or could it be that your gateman knew and recognized the occupant (s) in the vehicle and thus acted as he did? It was also revealed that Ray Ekpu’s gateman was around your house during that particular incident of parcel collection. How far was Ray Ekpu’s house from yours? What was Ray’s gateman doing in your house that early? When did Ray hear about the explosion to hurriedly convene a press conference attended by Gani, where they accused the government of complicity even before the police were alerted?
Mr. Dele Giwa, there are thousands of questions that beg to be answered, and this writing cannot accommodate them all. However, it is worthy to note that it is virtually impossible to have witnessed at close range such an explosion and all one suffered was bursting of the ear drum, which incidentally healed within 72 hours but enabled the same patient to have telephone conversation with BBC before the healing occurred. The miracle cure is highly dubious.
The international community is not oblivious to the tempestuous ways and notoriety of the country’s corruption and ingenuity at forgery; therefore, that an envelope, according to Kayode Soyinka (the only eye witness) bore the inscriptions of “Office of the President of Nigeria” does not really mean that it came from there. Your son Billy was of age to read the same inscription, yet, he never collaborated or commented on such observation.
Please Mr. Dele Giwa, I sincerely apologize if my letter disturbed you from your rest in heaven. Feel free to present it to others during the planned Heaven Sovereign National Conference for discussion, but suffice it to say that those who did this to you shall be judged in God’s way, Amen.
Those who still believe that the security chiefs under directives from the amiable General Ibrahim B. Babangida, GCFR, had a hand in this dastardly act—though entitled to their state of minds—are not sincere to themselves and probably lack the objective capacity required to understand that law is based on FACTS, not SENTIMENTAL HEARSAY.
Chief Gani Fawehinmi would have made his case had he allowed the hands of justice to investigate the case properly by even challenging the government then to allow a team of Interpol to collaborate with the Nigerian Police Force in their investigations of the crime scene. Unfortunately, his sealing-off the scene for more than ten days may have contaminated the crime scene and deprived the investigators their rights to collect analyzable evidence to apprehend the real people that killed you.
As Dr. M. O. Ené clearly articulated, “it’s about issues, not individuals.” Let’s keep talking and, to my readers, keep reading and have fun doing it; to my traducers, kindly go to heaven.
Long live the Federal Republic of Nigeria. Long live the United States of America. |
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