The Oath of Secrecy and The Lagos State Judicial Panel of Inquiry and Restitution: Between Fiction and Legality

By Israel Olawunmi

1. 0 INTRODUCTION

Coming off the heels of the passionate peaceful agitations and protests by Nigerian youths against the sheer malfeasance, brutality and many untoward acts of members of the Special Anti Robbery Squad(SARS) of the Nigerian Police Force towards innocent citizens and by a large extension the unprofessional attitude of the entire police force(“#ENDSARS Protest”), and also the unfortunate and blood-chilling event at Lekki Toll Gate on the 20th of October, 2020, the Lagos State Government pursuant to Section 1 of Tribunals of Inquiry Law of Lagos State, set up an independent 8 man Judicial Panel of Inquiry and Restitution(“the Panel”) to investigate complaints on cases of police brutality. This step was however, considered a step in the right direction to make these vicious security operatives pay the fiddler for their many heinous acts. This was going in smooth waters until a document was leaked on social media, bearing the name,‘Majekodunmi Temitope Oluwaseun'(a member of the Panel);an ‘Oath of Secrecy’ that every member of the Panel was expected to sign. Considering the already extant distrust the citizens have in the government and its agencies, this leaked document remarkably fanned the embers of untamed outrage amongst many. The consensus question was as to why the proceedings of supposed public hearing be shrouded in secrecy. Why an oath of secrecy; how legal is the panel; is the Panel somewhat a cult?. The leaked oath of secrecy allegedly handed over to members of the Panel has been considered by many to have even before hand made a dog’s breakfast of the proceedings and outcome of the Panel, as it is perceived nothing good will emanate from its Nazareth. The knife in the wound was further twisted, when the oath on the leaked paper was administered by the Governor of the State, Babajide Sanwo-Olu. How legal is an Oath of Secrecy; is the Governor of a State, not being a Commissioner for Oath nor a Notary Public empowered to administer oaths? The many uncertainties associated with these million Dollar questions and other consequential issues shall be the focal point of this discourse.

2. O. WHAT IS AN OATH OF SECRECY?

Essentially, an Oath of Secrecy constitutes a part of the civil service tradition for its employees or  persons appointed to perform an official function designated by the Governor in the Gazette ie appointees of government, as to take an oath of allegiance before taking up their roles. The oath of secrecy is to ensure that civil servants, or in context, members of the Panel, do not disclose official information to unauthorized people or members of the public in the course of proceedings until the proceeding is completed. This is to prevent misinformation which may be prejudicial to the proceeding and its outcome. This is also to reinforce independence, confidence and impartiality amongst members of the Panel.

The leaked Oath of Secrecy allegedly given to members of the Panel reads thus:

“I, ___________, solemnly swear/affirm that I will not directly or indirectly communicate or reveal any matter to any person which shall be brought under my consideration or shall come to my knowledge in the discharge of my official duties except as may be required for the discharge of my official duties as may be officially permitted by the Governor. So help me God/Allah”

It is noteworthy that, nothing in this Oath prevents the proceedings from being televised or prevents the public from having access to the proceedings of the Panel. The Constitution provides that the proceedings of a court or any tribunal established by law shall be held in public[1]. In Oviasu v Oviasu,[2] the Supreme Court defined ‘public’ to mean “open to everyone without discrimination. Anything, gathering or audience, which is not private is public”. In Nuhu v Ogele[3], it was held that, a judge’s chamber is not a regular court nor a place in which the public have a right to ingress and egress as of right save on invitation or by the permission of the court. In Edibo v State(2007)[4], it was held that a plea taken in the Judge’s Chambers was not only irregular, it was fundamentally defective  rendering the entire proceedings null and void.

The above is not to say the rule as to publicizing proceedings of a court or tribunal exists in absolute terms and admits no exceptions. A court or tribunal may exclude any person from its proceedings other than persons who are parties and their legal representatives on any of the following grounds[5]:

1. In the interest of defence;
2. public safety;
3. public order;
4. public morality;
5. welfare of persons who have not attained age of maturity;
6. protection of private lives and properties; or
7. to such extent as the court or tribunal may consider necessary by reason of special circumstances on which publicity would be contrary to the interest of justice.

Furthermore, a court or tribunal may direct the evidence in relation to any matter is taken in private upon being satisfied by a Minister or Commissioner of Government that it would not be in public interest for any matter to be publicly disclosed

In relation to the Panel, the Oath of Secrecy becomes expedient in the sense that resolutions made and passed by the members and such other associated acts are to be kept in confidence by the members, as revealing any possible divergent opinion held by a member in the process to the public may not augur well for the proceeding. For example, the Panel may decide to vote on how to collate evidence,  Savvy Rinu may want it to be done electronically, whilst Majekodunmi Temitope may opt for it to be done manually, where the Panel elects that it would be done electronically, Majekodunmi Temitope must not come on social media or any other platform to say he did not support electronic means, and Savvy Rinu and co were the ones who opted for electronic means. Whatever they decide as a group, stays with the group, because where Majekodunmi comes out to say this, it may impeach public confidence in the Panel. This is why the Oath of Secrecy in this regard becomes necessary. The Oath of Secrecy does not deny the public access to the hearing of the Panel, but it estops members from divulging official information to the public which may be prejudicial to the proceedings, and this emphasizes the duty of confidentiality expected of each and every member of the Panel. 

3. 0. THE LEGALITY OR OTHERWISE OF AN OATH OF SECRECY.

Another biting issue is as to the legal proprietary or otherwise of the oath of secrecy expected to be sworn to by members of the Panel. The name ‘Oath of Secrecy’ itself throws a large section of Nigerians on the horns of assumptions as to why a Panel they believed came in as a timely response to their heartfelt cries has been somewhat reduced  to a cult group. They hold tenaciously the belief that their genuine concerns, demands and interests are now being dishonestly slaughtered on the ignoble altar of governmental chicanery. The people believe the government is being mischievous yet again. With the name ‘oath of secrecy’, comes an ominous feeling of something unfavorable about to happen.  However, the Oath of Secrecy is not itself illegal, it in fact has its roots in our extant laws. The Constitution of the Federal Republic of Nigeria provides[6]:

“Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society-for the purpose of preventing the disclosure of information received in confidence…”

The Seventh Schedule of the Constitution in fact provides for certain oaths that come public officers must swear to, to ensure that their personal interests must not conflict with official conduct. The Constitution is not the only legislation permitting swearing to an Oath of Secrecy. The Tribunals of Inquiry  Law, Lagos State provides that[7]:

“Every member of a Tribunal appointed under this Law shall, before entering upon his duties, make, and subscribe to, an oath that he will faithfully, and impartially and to the best of his ability discharge the duties devolving upon him under the inquiry, and if the inquiry is not to be held in public, that he will not divulge the proceedings or the vote or opinion of the members or any matter relevant to the inquiry.Such oath may be taken under the Oaths Law. In this Law ‘oath’ includes affirmation and declaration.”

It will not be entirely correct to state that the Tribunals of Inquiry Law of Lagos State expressly provides for the swearing to an ‘oath of secrecy’. However, the Oaths Law of Lagos State, expressly provides for an oath of secrecy to be sworn to by civil servants such other persons holding positions or as the case may be executing official functions designated by the Governor in the Gazette[8]. This brings to bare why the Oath of Secrecy was given to members of this Panel to swear to.

Furthermore, the Matrimonial Causes Act also contains a provision pertaining to an ‘Oath of Secrecy’.It provides[9]:

“A marriage conciliator shall, before entering upon the performance of his functions as such conciliator make and subscribe before a person authorized in Nigeria to take affidavits, an oath or affirmation of secrecy in accordance with the form in the Second Schedule of the Act”

The above provision in matrimonial causes mandates a marriage conciliator, who is a person with experience or training in marriage conciliation nominated by a High Court Judge, to effect marital reconciliations to make and subscribe to an Oath of Secrecy before embarking on his functions[10]. The oath requires the non-disclosure of any communication or admission made to the marriage conciliator in that capacity except the disclosure is necessary for the proper discharge of his functions[11]

The National Population Commission Act also has a provision on the Oath of Secrecy; it provides as follows[12]:

“A person appointed a member of the Commission, shall not enter upon the duties of his office, unless he has taken and subscribed to the Oath of Allegiance, prescribed in the Seventh Schedule to the Constitution of the Federal Republic of Nigeria 1999 and the Oath of Secrecy set out in the Second Schedule to this Act.”

The Evidence Act, 2011 also provides[13]:

“Subject to any direction of the President in any particular case, or of the Governor of a State where the records are in the custody of a state, no one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived from such record except with the permission of the officer at the head of the Ministry, Department or Agency concerned who shall give or withhold such permission as he thinks fit. Provided that: The head of the Ministry, Department or Agency concerned shall, on the order of the court, produce to the Judge the official record in question or as the case may be, permit evidence derived from it to be given to the judge alone in Chambers, and if the judge after careful consideration shall decide that the record or the oral evidence, as the case may be, should be received as evidence in the proceeding, he shall order this to be done in private as provided in Section 36(4) of the Constitution”

As it relates to non-disclosure of privileged information and the Oath of Secrecy sworn to by members, it is noteworthy that, evidence bordering on the affairs of the state will be excluded if same will be detrimental or prejudicial to state security and public interest[14]The essayist disagrees with the argument that the Oath of Secrecy being mandated to be subscribed to by members of the Panel infracts on the Constitution, where it provides[15]: ‘Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society”. Again, the Oath of Secrecy does not portend the activity of a secret society, it is only to ensure the duty of confidentiality is maintained by the members of the Panel. 

4. 0. CAN A GOVERNOR ADMINISTER OATHS?

It is trite law that deposition on oath must be signed in the presence of the person authorized to administer oaths. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit[16].In Erokwu v.Erokwu[17], the Court of Appeal held that the concept of oath taking involves:

1. The Deponent making a statement in writing;
2. The document is taken to a Commissioner for Oath or a person duly authorized to take the oaths;

iii. The Commissioner for Oath requires the deponent to swear on a holy book particular to the deponent’s faith or a mere declaration for a deponent whose faith forbids him to swear;

1. The Commissioner for Oath then makes the deponent to verify what has been stated; and
2. the deponent afterwards signs in the presence of the Commissioner for Oath who witnesses that the affidavit was sworn to in his presence.

The combined effect of Sections 112 and 117 (4) of the Evidence Act, 2011 is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the Commissioner for Oath or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs[18].It is a known fact that oaths are commonly administered by Commissioner for Oath or a Notary Public. However, other than the aforementioned persons, the Oaths Law of Lagos State also empowers a Judge and Magistrate to administer oaths[19]. Furthermore, the Oaths Law Governor empowers to administer some oaths. The Governor of Lagos can actually administer some oaths such as[20]:

1. Oaths of allegiance;

 ii)judicial oaths;

iii)oaths of office; and

1. iv) oaths of members of Executive council.

However, according to the Oaths Law, the Governor cannot administer the oath of secrecy to members of the panel[21]. The oath is secrecy is to be administered by the Head of a ministry (the essayist contends the Ministry of Justice as it affects this discourse) or a person authorized by him. From the foregoing, the leaked picture containing an Oath of Secrecy to be sworn to by members of the Panel, administered by the Governor of Lagos State is illegal and void. The Governor can only administer the Oath of Secrecy where the Head of a Ministry has duly authorized him to administer same. As it stands, if there was no authorization by the Head of the Ministry, the administration by the Governor will not stand.

5. 0. CONCLUSION

The purport of this work is to disabuse the minds of members of the public who believe swearing to the oath of secrecy is to  hush members of the Panel into silence, shroud the entire proceedings in secrecy and deny the public access to the Panel’s hearing. It is only to ensure the duty of confidentiality is maintained by members of the Panel, so that information which may be prejudicial to the proceedings would not be divulged to members of the public. Furthermore, it is submitted that, it is clear that the Oath of Secrecy contained in that leaked document was administered by the wrong authority, hence, illegal and void except where duly authorized by the appropriate authority. Apart from the fact that no law directly empowers the Governor to administer that oath except where the authorized by the appropriate authority, he as an interested party in this matter is advised to stave off administering the Oath of Secrecy to members of the Panel as this may help douse tension. On a conclusive note, this Panel is one that the citizens have reposed so much confidence in, bearing in mind the existing distrust in the government, the government should steer clear of acts that would necessarily erode confidence in the outcome of the Panel. The members of the Panel are further enjoined to conduct themselves in the most professional manner and bear the interest of the people in mind viz-a-viz the need for justice. Lastly, may the souls of the victims of the Lekki Massacre; those we lost at the different peaceful protests across the country and those who have lost their lives to police brutality, rest in peace. May the victims of police brutality and the Lekki Massacre get justice in its pristine form.

Israel Olawunmi is an Associate at Kayode Sofola & Associates. He can be reached at olawunmiisrael10@gmail.com

Footnotes

[1] Section 36(3) Constitution of the Federal Republic of Nigeria 1999

[2] (1973) 11 SC 315

[3] (2003) 12 SCNJ 158

[4] All FWLR(384) 192

[5] Section 36(4) Constitution of the Federal Republic of Nigeria 1999

[6] Section 39(3) Constitution of the Federal Republic of Nigeria 1999

[7] Section 3(1) and (2) of the Tribunals of Inquiry Law of Lagos State

[8] Schedules 1 and 2, Oaths Law of Lagos State, 2015

[9] Section 14 Matrimonial Causes Act CAP M7 LFN 2004

[10] Section 114 Matrimonial Causes Act CAP M7 LFN 2004

[11] Section 11 Matrimonial Causes Act CAP M7 LFN 2004

[12]  Section 30 National Population Commission Act CAP N67 LFN 2004

[13] Section 190 Evidence Act, 2011

[14] Duncan v.  Cammel Larrd (1942) Ac 624; Conway V Rimmer (1968) ALL ER 874;  Adeyemi V Western Nigerian Housing Corporation (1968) NMLR 66.

[15] Section 38(4) Constitution of the Federal Republic of Nigeria 1999

[16] Udusegbe V SPDC (NIG) LTD (2008) 9 NWLR (Pt. 1093) 593; Maraya Plastics Ltd v.  Inland Bank NIG. PLC (2002)7 NWLR (Pt. 765) 109

[17] (2016) LPELR  41515 (CA)

[18] Section 19 of the Notaries Public Act CAP. N141 LFN 2004

[19] Section 10 Oaths Law of Lagos State, 2015

[20] Schedules 1 and 2, Oaths Law of Lagos State, 2015

[21] Schedules 1 and 2, Oaths Law of Lagos State, 2015