LETTER: Some facts about the tribunal that condemned Saro-Wiwa

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The Independent Online
From Mr Michael Birnbaum, QC

Sir: The Independent of 6 December published a lengthy advertisement by the Nigerian High Commission justifying the conviction by a Civil Disturbances Special Tribunal of Ken Saro-Wiwa and eight others. It made the remarkable claim that the tribunal was lawful and "recognised under the Nigerian Judicial system".

Under the Nigerian constitution, a defendant is entitled to a fair hearing before an independent and impartial court or tribunal. In a case of murder, the trial must take place in a State High Court. Before or during the trial, the accused can seek judicial review of the decisions of the trial judge. After conviction, he can appeal. In a capital case, that appeal lies as of right first to the Court of Appeal and thence to the Supreme Court.

However, in recent years, successive military governments have used a system of decrees and special tribunals to undermine these constitutional rights. In the Saro-Wiwa case, the government invoked Decree 2 of 1987. President Abacha personally nominated the members of the tribunal. Two were judges; the third, as required by the decree, was a military officer.

Section 8 of the decree provides that the validity of any decision of the tribunal may not be questioned in any court of law. Hence, no right to judicial review or to appeal. Hence, the inevitable failure of all attempts by the defence to challenge in the ordinary courts the legality of the tribunal and its decisions. Hence, the execution of the defendants within only 10 days of the convictions.

Curiously, the High Commission has experienced a recurrent difficulty in accurately describing to the public the nature of the tribunal. For example, in January it circulated a brief entitled "Trial of Ken Saro- Wiwa in the Civil Disturbances Special Tribunal", claiming that the tribunal was "made up of two serving High Court Judges". As in the advertisement the existence of a third, military, member was omitted.

It is important to publicise the true facts, not only in the interests of accuracy but of justice: reliable reports suggest that in January the same tribunal will embark on the trial for capital murder of 19 other Ogoni defendants.

Yours sincerely,

Michael Birnbaum


London, EC4

6 December

The writer was an observer at the trials of Ken Saro-Wiwa and others on behalf of the Bar human rights committee and the Law Society.