At the time of writing, theSaro-Wiwa case had not been reported in any of Nigeria’s numerous law reports. The account presented here was gleaned from newspaper reports, as well as the government’s own paper released on the verdict of the tribunal and excerpted in the Nigerian daily newspaper, The Guardian, Feb. 21, 1996, at 2. The government report is now available. Government of Nigeria,Nigeria: The Ogoni Crisis — The Judgement (Fed. Ministry of Information 1996); Government of Nigeria,Nigeria: The Ogoni Crisis — The Truth of the Matter (Fed. Ministry of Information 1996). For criticism of the proceedings, see M. Reuben Jaja, Rivers State Foundation,Report of the Special Indigenous Delegation to Ogoni and Other Oil and Gas Producing Communities of Rivers State of Nigeria on a Fact-Finding Mission (1996); Human Rights Watch/Africa,Nigeria — The Ogoni Crisis: A Case-Study of Military Repression in Southeastern Nigeria (July 1995); Michael Birnbaum,Nigeria: Fundamental Rights Denied—Report of the Trial of Ken Saro-Wiwa and Others (1996). The son of one of the men for whose death Saro-Wiwa was prosecuted has written a defense of the proceedings. Desmond Orage,Justice Prevailed: The Case of the Republic of Nigeria versus Kenule B. Saro-Wiwa et al. (1995).
Ogoniland is one of the major oil-producing areas in Nigeria. Oil exploitation activities have caused tremendous environmental pollution and degradation in Ogoniland without any significant corresponding benefits to the Ogonis. MOSOP was formed to fight this environmental menace and to secure some basic rights for the Ogonis. The Ogoni Bill of Rights seeks to secure a reasonable share of oil revenues for the development of the human and material resources of Ogoniland, reduction in environmentally degrading activities by oil-producing companies, and greater political autonomy for the Ogonis.Ogoni Bill of Rights (Saros Int’l Pub. 1992).
Seesupra note 3.
Civil Disturbances (Special Tribunal) Decree, No. 2 of 1987 [hereinafter Decree], promulgated by the Babangida administration, was amended by the same administration in 1992, Civil Disturbances [Special Tribunal) Act, Cap. 53, 1992 Fed. Laws.
The Saro-Wiwa trial was not the first in which accused persons were tried for capital crimes before specially constituted, ad hoc civil disturbances tribunals in Nigeria. Previous cases include the trial of the Kafanchan rioters (1987), the Tafawa Balewa rioters (1992), and the Zangon Kataf rioters (1992). It should additionally be emphasized that the use of special tribunals is not unique to the context of civil disturbances. Professor Benjamin Obi Nwabueze has identified three types of special tribunal: military tribunal (essentially a court-martial, with all or a majority of tribunal members military or police personnel); special military tribunal (not a court-martial but most tribunal members are military or police personnel); and nonmilitary special tribunal (chaired by a serving or retired superior court judge, sitting with four other members, one of whom must be a member of the military). The Guardian, Nov. 28, 1995, at 22. Since 1966, special tribunals of the second two types have been set up under no fewer than eighteen different decrees, including Decree,supra note 6; Robbery and Firearms (Special Provisions) Decree of 1970 (as amended 1971, 1977); Petroleum Products and Distribution (Anti-Sabotage) Decree, No. 35 of 1975; Recovery of Public Property (Special Military Tribunal) Decree of 1984(as amended); Special Tribunal (Miscellaneous Offences) Decree, No. 20 of 1984; Public Officers (Protection Against False Accusation) Decree of 1984; Treason and Other Offences (Special Military Tribunal) Decree, No. 2 of 1986(as amended); Transition to Civil Rule (Political Programme) Decree, No. 19 of 1987. Particularly offensive to the exercise of fundamental rights is the Public Officers Decree,supra, which imposes a two-year prison term, without the option of a fine, on individuals who, inter alia, publish any statement,true or false, that brings, or is calculated to bring, the government or a public officer into disrepute.
Decree,supra note 6, § 1(3), provides further that the Investigation Committee may make recommendations for the trial of persons involved in civil disturbances.
The Civil Disturbances (Amendment) Decree, No. 45 of 1992, amended the composition of the tribunal to require not more than a total of four members, one of whom must be a serving member of the Armed Forces. The Civil Disturbances (Special Tribunal) (Amendment) Decree, No. 13 of 1987, provides that a quorum for the trial of any offender shall be constituted by the chairman and any other three members.
See Cap. 42, 1958 Fed. Laws. By virtue of Decree,supra note 6, § 3(3), the President may "add to, alter or modify the list of offences referred to" in the first schedule. On the difference between the Criminal Code and the Penal Code, seeinfra notes 53–54 and accompanying text.
Federal Provisions Act, No. 25 of 1960.
Cf. Decree,supra note 6, § 1(1)(a).
Cf. id. § 1(2)(a).
Cf. id. § 1(2)(b).
Cf. id. § 1(2)(c).
Id. § 1(1)(a)–(d).
Id. § 1(2)(a)–(c). The President also has discretion to regulate the procedure to be followed by the Investigation Committee.Id. § 1(4)(b).
Id. § 2(1).Id. § 2(2)(b) requires the President to include a serving member of his main constituency, the Armed Forces, on the tribunal. Seesupra note 10.
Decree,supra note 6, § 7.
Seesupra note 13.
Decree,supra note 6, § 7(2).
Sam Amadi,How Valid Is the Civil Disturbances (Special Tribunal) Decree 2 of 1987, The Guardian, Apr. 16, 1996, at 26 (echoing Nwabueze,supra note 7, at 22).
E.g., Paul Bohannan,Justice and Judgement among the Tiv 134 (1957), describes a case in which a policeman brought an assault charge against the son of a judge of the customary court, who accordingly stepped down and asked the three othermbatarev to settle the dispute.
Decree,supra note 6, § 2(2)(b).
Amadi,supra note 25, at 26 (emphasis added).
Benjamin Obi Nwabueze, The Guardian, Dec. 5, 1995, at 24.
Const. § 33(1) (1979) (emphasis added).
Banjul (African) Charter on Human and Peoples’ Rights,adopted June 27, 1981, art. 7(1)(d), O.A.U. Doc. CAB/LEG/67/3/Rev.5 (1981) (entered into force Oct. 21, 1986),reprinted in 21 I.L.M. 59 [hereinafter Banjul Charter],implemented by African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act, Cap. 10, 1990 Fed. Laws.
International Covenant on Civil and Political Rights,adopted Dec. 16, 1966, art. 14(1), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (Nigerian accession July 29, 1993) [hereinafter International Covenant].
Nwabueze,supra note 29, at 24. The performance of past government tribunals vindicates such public skepticism.
Const. § 220(1) (1979) (emphasis added). Decree No. 107 of 1994 amended this provision, but the amendment retains the right of appeal available to an accused person standing trial in a criminal matter.
The Banjul Charter was relied on in Ogugu v. State,  9 N.W.L.R. (pt. 366), at 1, 47.
Banjul Charter,supra note 31, art. 7(1)(a).
International Covenant,supra note 32, art. 14(5).
Reading together International Covenant,supra note 32, arts. 6(1), 6(2), 14(5).See generally William A. Schabas,The Abolition of the Death Penalty in International Law (2d ed. 1997).
Nigerian judges consider themselves obligated to follow previous decisions in appropriate cases even when they have what they consider to be good grounds for not doing so.E.g., Salako v. Salako, 1965 L.L.R. 136 (Adefarasin, J., sitting in High Ct. of Lagos) (following Danmole v. Dawodu,  3 F.S.C. 46 (Sup. Ct.)); Federal Administrator General v. Adeshola, 1960 W.N.L.R. 53; Board of Customs and Excise v. Bolarinwa, 1968 N.M.L.R. 350.
Crim. Code §§ 8–10 provide for liability in cases of "common intention," counseling, and accessory after the fact, respectively.Cf. Penal Code chs. IV–V.
Cf. Decree,supra note 6, § 1(2)(a).
For a discussion under English law, see R. v. Pagett, 76 Cr. App. Rep. 279 (C.A. 1983); R. v. Roberts, 56 Cr. App. Rep. 95 (C.A. 1971); R. v. Mackie, 57 Cr. App. Rep. 453 (1973).
The history of the Criminal and Penal Codes of Nigeria vindicates this claim. What is today the Criminal Code of Nigeria was drafted in 1878 by Sir James Fitzjames Stephen to replace the common law of crimes in England but was never enacted by the British Parliament. Cyprian O. Okonkwo & Michael E. Naish,Criminal Law in Nigeria 5 (2d ed. 1980); Martin Friedland,Codification in the Commonwealth: Earlier Efforts, 2 Crim. L.F. 145, 150–59 (1990).
J.B. Ojwang,Laying a Basis for Rights towards a Jurisprudence of Development, inAfrican Law and Legal Theory 351, 371 (Gordon R. Woodman & Akintunde O. Obilade eds., 1995).
See Yash Ghai,The Role of Law in the Transition of Societies: The African Experience, J. Afr. L., Spring 1991, at 8, 15–16.
At the time, the Commonwealth of Nations, holding a meeting for heads of government in Auckland, New Zealand, announced the suspension of Nigeria from the organization for "a serious violation of the principles of the Harare Commonwealth Declaration." Zuraidah Ibrahim,Commonwealth Leaders Suspend Nigeria, The Straits Times (Singapore), Nov. 12, 1995, at 1,available in LEXIS, News Library, Curnws File.
The Guardian, Nov. 12, 1995, at 1, 2.
Id. at 2 (emphasis added).
The 1958 Constitutional Conference took a decision to abolish customary criminal law, effectively derailing the development of an indigenous criminal jurisprudence and legal theory. The 1959 Bill of Rights provides that " no person shall be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law." This provision became Const. § 22(10) (1963) and is in force today as Const. § 33(12) (1979). Penal Code § 3(2) is even more blunt: "No person is to be liable to punishment under any native law or custom." The leading case supporting the displacement of customary law is Aoko v. Fagbemi,  1 All N.L.R. 400 (High Ct. West. Region).
The Criminal Code applies alongside the Criminal Procedure Act, Cap. 43, 1958 Fed. Laws.
The Penal Code applies alongside the Criminal Procedure Code, Cap. 30, 1969 Fed. Laws.
Okonkwo & Naish,supra note 45, ch. 1.
E.g., State v. Okeke, 1969 N.L.R. 275. For further discussion, see G.N.K. Vukor-Quarshie,The Defence of Intoxication in Two West African Countries, 1 Calabar L.J. (1986).
Ojwang,supra note 46.
Crim. Code § 370.
Seesupra notes 31–32.
Ojwang,supra note 46, at 370.
This was the view expressed by a British Foreign Office spokesperson following the judgment in the case. The Guardian, Nov. 1, 1995, at 1.
If there was cogent evidence that the Ogoni activists had procured certain Ogoni youths to commit murder, then they could have been convicted of murder under the Criminal Code. This conclusion is compelled by reading Crim. Code §§ 315, 316, 7 together. The Ogoni Bill of Rights,supra note 4, is probably also a seditious document under Crim. Code §§ 50–51.
Amadi,supra note 25, at 26.