#ENDSARS Inquiry: Fundamental errors in findings of Lagos panel inconsistent with evidence of witnesses — Enitan, SAN

In this interview with Arise TV on Thursday, Senior Advocate of Nigeria, Kayode Enitan, revealed there are fundamental errors in the report of the Judicial Panel of Inquiry and Restitution made public after its submission to the Lagos State Government last Monday, November 15, 2021. According to him, there are some submissions that should be thrown out of the report, based on findings held which are not consistent with the evidence submitted by witnesses and forensic experts. He argued there was no evidence before the panel to substantiate there were killings at the Lekki Toll Plaza as alleged. Excerpts:

Mr. Enitan, so much as you know is being said about the #EndSARS panel, and the state government’s approach and all of that. But considering the immediate comments on the document being circulated, perhaps we should even start by asking you, what is your impression about that document that is being circulated at the moment?

That document could only have come from someone who was on the panel.

You could say for sure?

The only people who had it were members of the panel and that was a soft copy. Who could have had a softcopy as at the day the hardcopy was being given to the government? It could only be members of the panel. So, one of them deliberately leaked it for whatever purpose.

Why do you think it was deliberate?

Well, why would you put something that is not meant to be in the public in the public, if you had no intentions of doing so. And I’m aware that it was leaked to a specific individual who then posted it in a group and when it got in that group, it now went viral.

So, the member of the panel didn’t directly leak it to the public…

He must have. Because, the minute it leaves his hand, it’s in the public domain. If something is supposed to be with me and I give it to you, then I have leaked it and that will be deliberate. That could not have been inadvertent.

What if it didn’t come from any member of the panel directly? What if it came from anyone else working with them?

I would not want to conjecture along that line, because, whoever was working with them, would he have what a member then came to out say that; yes, that is our report, but that seemed to have some errors.

It seems from all you’re saying; you’re literally putting question marks on the integrity of the members of the panel.

I do not doubt their individual integrity. However, the fact remains that, that document that is in the public domain could only have come from one of us. Who exactly that was, the person’s conscience tells him that he did it.

Do you think it’s something that the government should investigate?

I don’t think the government should bother itself about that. But what has the leaking done? It has now given everyone who would want to speak on it, to read it and speak to it. I personally, I’ve not bothered to speak publicly outside of the Panel about what was going on there. And it’s not because one didn’t have anything to say. But the appropriate thing to do is wait for the report submitted to the government, wait for the White Paper and then discuss the White Paper.

Do you have an idea of who did that specifically?

I cannot specifically say that it was this individual. But if you are to look at the avenue variant to conjecture…

I’m asking because when you said who leaked it, male or female members, you said he…

Maybe that’s a function of my gender.

Are you then confirming that this leaked report is the authentic one?

I cannot speak to the authenticity. But what I can say is that a member of the panel has publicly acknowledged that document as being the report, though this has some errors as he called it.

But you were counsel for Lagos, so you know which one is the report?

No, I don’t.

You’ve not seen it?

What I know, which is what I say on TV, was that on Monday (15th November), two hardcopies were handed over to the Governor. I saw that on TV, we were not invited.

You’ve not seen any of the hardcopies?

No, I haven’t.

But you’ve seen the softcopies?

Of course, which I have taken the pain to read; the 309 pages. I’ve taken the pain to sieve through the evidence that is contained in that report, and I’ve taken the pain to compare it with the findings. And when that is done, you’ll find out that there are too many inconsistencies between the evidence and the findings. Unfortunately, not many people who have spoken as to the content of the findings have taken the pains to read these 309 pages.

Should we take the pains to read or wait for the State government to release the report itself? So that people will know we are speaking to the right document.

The government is not expected to release the report.

Why?

Panels of enquiry, according to the law, Tribunal of Inquiry Law of Lagos State, the Panel will seat, take evidence and form their report, submit it to the government; government will seal that report and now come up with a White Paper stating, we have seen this, we accept this, we do not accept this and they will put the reasons. That is what the White Paper is for. It is the White Paper that we are all supposed to be discussing not the report.

What law would be broken if the state government releases the report before the White Paper?

That will go contrary to the Tribunal of Inquiry law.

But there have been several occasions we know in this country… I’m very sure you are well aware of several such panels of inquiry whose reports never saw the light of day until they were investigated by journalists; whose recommendations were never taken up at all and which left many people with the sense that justice has been delayed.

That is correct, but then that is not the situation here. When it was submitted to the Governor, he did say that he was setting up a Panel and he immediately set that Panel up; go and look at it and let us see what we are going to put up. And he gave a date of two weeks.

Which is 11 (as at Thursday) days from now.

Exactly. But, on the same 15th (November) someone obviously could not wait, but went ahead and leaked that report. Because by evening of the 15th, it was all over the place. I read it that night when I saw it in one of those social media fora that we belong to.

So, what does the state government think about this?

I’ve not spoken to the Governor

Do you think that they will be upset with this scenario?

I am not in a position to say. But what I can say to you, is that having read that report, I can assure you clearly that there were discrepancies. For instance, at page 287, the Panel found medical evidence from Dr Lawson and Dr Aranmolate of Reddington Hospital and Grandville Trauma Centre respectively reported at least one death at both facilities, that is not true.

Pages 56 to 68 contains the evidence of Dr Lawson of Reddington. Dr Lawson never said anybody died in their facility. Grandville, which is operated by Dr Aranmolate; his evidence is contained at pages 109 to 115; he never said anything about anyone having died. He brought a list of everyone that was presented at his facility over the cause of about two or three days. Now, forensics, the panel at page 287 said Sentinel Forensic Limited, engaged by the Panel, confirmed that multiple muzzle flashes consistent with discharge of ammunition were observed. Forensic experts also noted that, at the commencement of engagement for the most part, the muzzle flashes appeared to be directed upwards and, at other times, (in the) direction of the protesters. Experts further noted that there were instances where two people sustained injuries and all of that.

But what was the evidence? Page 8 of the forensic report tendered by Sentinel states clearly, there were no visible signs of bullet fragmentation or impacts from high velocity projectiles; observed fragmentation was not consistent with impact from lower velocity projectiles.

This gentleman was taken up on what he read. He went through the entire tollgate area, went through the entire structure at the tollgate. He said he could not find anything struck by a high velocity projectile, which is a bullet consistent with military ammunition. Now page 15, where he was talking about muzzle flashes. It says, the analyst of the sparks believed to be muzzle flashes and an indication of shots fired, more muzzle flashes are observed all appearing to be directed upwards. Referring to page 17 of the report, the type of ammunition discharged could not be determined from the footage. Now, this gentleman watched the LCC footage, the experts engaged by Lagos State watched the same LCC footage, particularly as shown on CNN. What did the panel do? The panel made a buffet of the evidence, took the one that is right, condemned the other ones, as saying that the person did not speak with participants, did not speak with victims, did not speak with protesters. However, this expert had the medical report of all the victims or alleged victims. He had their records which were tendered by Dr Lawson, by Dr Aranmolate using the medical records, subjected to examinations. Medical forensics determined that, of all the victims, some were indeed shot by high velocity guns after 9pm, but every other person was shot by low velocity guns, meaning guns that shoot cartridges and that discharges bullets.

What does that entail?

That means they were not shot by law enforcement agents.

So, your point is that, contrary to the report that the Army deployed shot people, you’re saying that’s not the case?

Were the Army at the Tollgate? No one is in doubt. Did the Army fire shots? No one is in doubt. But what shots were fired. General Taiwo came and he said: Yes, they had live rounds, they had blank rounds, but that the blanks were deployed. And the two experts showed consistency in the fact that they could see from the video that after each round of discharge, they had to reload and that, that was consistent with bullet crowns. Let me go on to the testimony of the pathologist; the pathologist was summoned to bring autopsy report of anyone who was alleged to have died in the Lekki environment. He brought three. The first one was of a blood force trauma to the head on the 20th (October 2020).

What time?

In the night on Admiralty Way, that’s where the corpse was picked.

So, what does that mean? Did they say the time the person was shot?

I think that would be at Dr Lawson’s…

That could be 6pm?

No, it was not 6pm.

You said you were not sure.

Yes, but nothing says 6pm. So, let us not go to what is not on the record.

But you’re going to the same evidence.

I am speaking to what is on the record. He brought that report, blunt blood force trauma to the head.

Yes, but if you don’t tell us what time, we can’t be sure of what you’re saying because you spoke about timing for some of those matters laying the ground to disprove some of those evidence that were there.

Hold on, I think I’ve seen the time.

What time is it?

1:15am.

So that’s when the person was shot?

Not shot, blunt force trauma in the head.

So that was when the person was hit on the head with a gun.

He was brought in to the facility at 1:15am. That was apparently the person the Governor referred to in his first statement.

So, if you say that was when the person was brought in; then we don’t have an idea of when the person sustained the injury, do we? Or did the report  indicate that?

The report says place of death was said to be at Lekki. This was an adult reportedly taken to Reddington Hospital in Lekki in an unconscious state on account of an open cut fracture on the 21st October at 1:15am. Based on what we saw, we concluded that the death was as a result of a severe skull and brain injury, craning cerebral injury which we felt was due to blood forced trauma; that is the pathologist speaking.

The second person was said to have been found under the Lekki-Ikoyi bridge, the third person, and the second person also had trauma to the body

So, is your point that since they were not found at that particular spot, they could not have been part of those who were protesting and could have sustained these injuries at that spot. Is that the point you’re making?

That is not the medical evidence sent to us.

So, it’s not possible to be wounded somewhere and found elsewhere?

Wounded. If you were wounded, your wound and injury should be consistent to what the allegations are. If you said the Military or the Police came and shot the people, I expect that the corpses will have bullet injuries. The only person with bullet injury is the third person who was said to have been found at Lekki on the 21st (October) in the evening at about 9:45pm.

So, it didn’t happen on the 20th?

…interrupts Dr. Ade Dosunmu (another guest on the programme) A question, has Dr. Dosunmu read the report? Did he read the evidence contained in the report before going to the findings, because you see, it is not a buffet it’s a set meal; you eat everything from pages 1 to 309. Don’t go to read from 287. I am sure the good doctor has not read the report.

The thing is this, when you started out you made reference to a member of the Panel who said there were errors. But I think the same member also said those errors were corrected before they submitted to the state government. And you said there were two hard copies submitted so if the state (Governor). What are people supposed to do? How do we know that what is here is not the right one that is here?

Very well remember, the findings that everyone is speaking to we have not seen the hard copy; all we have all seen is just 309 pages. How many of those speaking to the findings bothered to read the evidence contained in that report

So, they should still rely on the circulated ones which you said there were errors that were corrected

If they say it has been corrected, fine but…

Do you think it was corrected?

I don’t know because I have not seen any other thing. But what I can say is that whoever is going to speak about those 309 pages should ensure that he has read the 309 pages and I will show you further evidence in the same document.

In that same document, the facts that you are speaking of, they are valid. But have you also considered that part of that same leaked report that talked about the fact that there were talks about deploying trucks with brushes washing away what would have been evidence.

Thank you very much. That was said in the report of Forensic Sentinel as something that was picked from open source. Now open source, go to LAWMA twitter handle, which is where they said they saw that the LAWMA MD said that they had commenced the cleaning of Lagos, that tweet was on the 23rd of October.

After a judicial panel of enquiry had been set…

As at the 23rd the panel had not been set.

The panel had been set as at 18th or 19th October

No

The panel was set up before October 20

The EndSARS judicial panel of inquiry

The Judicial panel of inquiry, the EndSARS part was just an addition

No, the Lekki incident was the addition, as of the 20th, 21st, 22nd and 23rd (October), that additional term of reference relating to the Lekki tollgate was not part of the judicial panel of inquiry’s terms of refence.

You have been questioning individual integrity of those members but then you are now questioning that particular report. Even Dr. Dosunmu said he is surprised that you are focusing on some of the minor things; that it comes across to him as though Lagos is, or you are trying to cripple the objective and then the findings of that report.

You see, the integrity of members may not be in doubt. It has nothing to do with the evidence on the basis of which they came to find them – if the evidence does not add up with the findings it may be simply that they failed to appreciate even the evidence before them. It has nothing to do with the integrity. I am not talking about integrity. I am talking about the evidence contained in the 309 pages and the findings contained in the 309 pages. My friend and brother here we’re talking about brushes. What was the evidence? The Panel, it was at page 296 that the Panel said three trucks with brushes were brought and that there is something on twitter and as of 20th October, that is not correct. Before the panel and till this moment, there is no video to corroborate that statement. Remember that before the Panel, what was the evidence. Somebody said they were there on the morning of the 21st; there were journalists, they had cameras. Here evidence was that there were news reporters. Now not one of all the news reporters that were on that location on the morning of 21st had sight of these trucks with brushes. Twitter handle, you can still go there as of this morning. You know you can always find out whatever had been on twitter; the internet never forgets. That statement that was shown was on the 23rd, the trucks that were there, are these open back three-ton trucks

Yes, Internet never forgets. A statement by LCC; press release, it is out there for everyone to see which they tendered to the panel on that day, and it’s saying, and I quote “Lekki Concession Company Limited (LCC) strongly condemned (that is in caps) the shooting of peaceful protesters at the Admiralty Circle toll plaza yesterday 20th October, 2020. LCC will never (in caps) support or condone such unscrupulous act meted out on unarmed protesters. Since the commencement of the protest, LCC has allowed free access…” And it goes on. This is what the panel relied on; it was tendered. They were the ones who said it, LCC, an agent of government.

What is contained in that statement, ‘shooting.’ There is no doubt that shots were fired, we all saw it on TV that evening of the 20th. Did LCC speak to anyone being killed? Shots were fired, we saw that on live TV

Shooting of unarmed protesters…

We saw shootings on live TV. But what we did not see was anyone being… because your journalists were there, It was on Channels that I saw it and I also saw your anchor speaking to Professor Pat Utomi that evening. We all saw the soldiers there shooting into the air.

Was Professor Pat Utomi on ground? He wasn’t physically there.

He was not physically there but he was but…

(cuts in) The Interview was not conducted right there with him.

No interview was conducted there, but let us

(cuts in) So why are you referencing Professor Utomi, as if he was physically there

No, I’m just telling you that we all saw soldiers shooting into the air, we all saw the LCC footage. Thereafter, at the panel, we all saw that, the panel’s forensic expert went and looked at that footage, the state experts went and looked at the same footage, they both came back saying that soldiers fired blank rounds.

Can we look at that footage for a bit? Is this the one you’re talking about?

Yes, and you can see the muzzle flashes going up.

Mr. Enitan, this that we are looking at is an activity being performed by security officials who are supposed to be protecting the people who are not armed, who had no business there in the first place. Military men, who had no business there in the first place shooting at people/Nigerians they are supposed to be protecting, who are not armed and who are just simply exercising  Constitutional rights; and soldiers are trained differently from the Police, they are trained to kill and you do not see anything wrong with that? Now they were shooting into the air with what intent, to scare?

Evidence was led at the panel in respect of this.

Is there a rule in law for morals?

I am sorry, morals have no place in law. Law is, what does the letter of the law says, what are the facts, what is the evidence presented? Then that evidence copulates with the provision of the law, if they add up, make a finding and if they don’t, you still make a finding. This that we watched here just now shows clearly muzzle flashes, the experts as well as a part, well he was not on ground, but all agreed that those muzzle flashes were consistent with the firing of blank rounds. You see that shots were fired, those were the shots.

If that were the case, why were there denials from the very high-ranking government officials that soldiers were not even there in the first place, it could have been thugs who were there, all sorts came through at that point in time. It shows intent to conceal and deny those things.

No, I think it was Shakespeare that said the devil does not know what is in any man’s heart. I do not know any man’s intent but what I know is what I see.

Mr. Enitan, the soldiers also confessed to the panel that they fired both live and blank bullets. Was that right? Yes, or no?

That’s correct, but they never said they shot at any individual based on evidence on the record. I don’t do conjecture I will back it up.

They spoke to the panel that they fired both live and blank bullets? Yes, or no?

Yes, however you’ve just seen that footage which was of soldiers firing, now what is consistent with an individual been shot with a live round it is not in any footage that we watched

In the law, you always talk about the intendment of the law, in this particular case soldiers who are trained to kill, they go to a venue where there is a peaceful protest because the LCC said it in their press statement that it was peaceful. So, if you then send soldiers there to a peaceful protest, what did you expect them to go do, to go sightsee? And secondly, is it that the guns that the police use cannot fire into the air? Why did the soldiers have to go there to go fire into the air? 

Now we are losing sight of one thing, evidence before the panel was that as of that moment, the whole of Lagos State had been paralyzed

According to who? The whole of Lagos was paralyzed? The same Lagos where we were? I don’t think so because we moved around.

As on the 20th, you moved around because you were a journalist. I have lawyers who went to court, finished by 2pm but did not get back to the mainland until 7pm because the whole of Lagos had been locked down. What happened was a curfew was declared as at that time the evidence before the panel was that if there is a curfew that is the paralysis of the state.

Why will the soldiers go shoot when there is a curfew?

The soldier’s evidence was that they were deployed to cover the Lekki-Epe corridor.

The shooting was after the curfew, wasn’t it?

The shooting was after declaration of the curfew.

So why were they shooting when there was already a curfew?

They were going somewhere. The evidence and I’m not talking about what is not in those 309 pages.

(Break… Dr Dosumu speaking)

In relation to what you are going to say as well as Dr Dosumu, the thing you cited some errors which you talk were inconsistency which actually transpired, if the panel report is 80% accurate why won’t it be bided up.

Accuracy is not about what you have written in English, accuracy of the report is the evidence consistent with the findings. If I am saying to you that on critical aspect the evidence of the forensic expert employed by the panel itself is inconsistent with the findings of the panel, the evidence of witnesses is that the panel said they relied on heavily, Sarah Ibrahim, Dabira Ayubu, Kamsichukwu, these were individuals that gave evidence that showed they did not know what they are taking about, read the report, let everyone read the evidence in that report.

If they are asking you people to read what is in the report and they said there were errors…

It’s not errors, I’m not taking about typo errors, I’m talking about fundamental errors; it like a judgement which on its face, the evidence does not support the result.

Are you saying there was no killings as a result of this? 

At Lekki Toll Gate, there is no evidence before the panel.

Are you saying there’s no killing or there’s no evidence of killing?

I was not there, I am not trained to listen to hear say, I am trained to react to evidence, what was the evidence that was presented and it contain in those 309 pages, sorry sir, if that the evidence cannot support the findings, then that is it. Listen, I am saying read the report.

How do court decisions go normally? 

It’s a judicial panel of inquiry.

Would you be recommending, if you had to, to the Lagos State Government that this report should be discountenanced.

If I were a take a decision on this report, I will look at the evidence contained in the report, I will look at the findings, definitely there are findings that make sense regardless of the evidence, that police need training, definitely the police need training that there should be psyche evaluation and all of that.

What will be your recommendation to the government of Lagos State if you had your way?

If I had my way?

Yes

If I had my way, based on what I can see in the evidence as a lawyer, I am not talking sentiment, as a lawyer based on the evidence contained in that report, there are some findings that should be thrown out, based on the evidence in the report, findings that are not consistent, those findings should be thrown out and findings that are consistent with evidence, definitely, those findings should stand. The evidence is in the public domain, people should read it.

But the report which you are saying is not authentic?

Listen Chamberlain, every one of us who had course to comment on this report, we are commenting on what is in the public domain, we do not know what was submitted to the government.

The ball is in the court of the State, because the white paper is supposed to tell us what is in the report.

I am afraid you can’t go further because we will keep complaining if we had to go on.