(NIGERIA) Just on Monday December 8, 2014, Lagos based human rights lawyer and Senior Advocate of Nigeria (SAN), Femi Falana asked the military high command to set aside the death sentence passed on 12 soldiers by its Court Martial.
Specifically, the radical lawyer in a petition addressed to the Chief of Army Staff, Leutenant General Kenneth Minimah declared that the judgment of the Court Martial cannot be justified as it is characterised by what he termed grave errors of law which occasioned miscarriage of justice.
According to the SAN, "This petition is filed on behalf of the convicts pursuant to Section 149(1) of the Armed Forces Act (Cap A20) Laws of the Federation of Nigeria, 2004
which stipulates as follows:
"An accused may, within three months after being sentenced by a court- martial and before the sentence is confirmed, submit to the confirming authority any written matter which may reasonably tend to affect the confirming authority's decision whether to disapprove a finding of guilt or to approve the sentence.
"By this petition, we appeal to the Chief of Army Staff as the confirming authority to disapprove the finding of guilt and death sentence passed on the 12 convicted soldiers on the ground that the judgment of the General Court-Martial cannot be
justified as it is characterized by grave errors of law which occasioned miscarriage of justice.
"On May 14, 2014, the soldiers at the Maimalari Cantonment staged a protest over the brutal killing of ten of their colleagues by the Boko Haram troops. The complaints of the soldiers centred on lack of adequate weapons, poor feeding and non-payment of accrued salaries and allowances.
"The protest coincided with the visit of the General Officer Commanding, Major General Ahmed Mohammed on May 14, 2014 to the Maimalari Cantonment.
"Although the car of the GOC was shot at during the protest, he was not injured. Alarmed by the development, the military authorities arrested 18 soldiers including the convicts.
"They were charged with the offences of conspiracy, attempted murder, mutiny, disobedience to particular order, insubordinate behaviour and false accusation contrary to some provisions of the Armed Forces Act and the Penal Code Act.
"They were tried before the Court Martial presided over by Brigadier-General Chukwuemeka Okonkwo. Out of the 18 soldiers, five were discharged and acquitted, 12 were convicted and sentenced to death while one was jailed for 28 days with hard labour.
"It is pertinent to note that the Authorities investigated the immediate and remote causes of the soldiers' protest and confirmed that the complaints of the soldiers were not unfounded.
"Upon indicting Major- General Ahmed Mohammed for not attending to the grievances of the aggrieved soldiers, he was removed as GOC and
retired from the Nigerian Army by the military high command.
"With respect to the soldiers' complaints of lack of adequate equipment to fight the Boko Haram troops who are armed with sophisticated weapons, the National Assembly has recently approved the request of the President & Commander-in-Chief of the armed forces, Dr. Goodluck Jonathan for $1 billion loan to purchase military hardware for the purpose of prosecuting the war on terror.
"By virtue of Section 52 (1) of the Armed Forces Act, the offence of “mutiny” is defined as a combination of two or more persons subject to services law, to use violence or threat of the use of violence or refuse to avoid any duty or service in connection
with operations against the enemy. The offence attracts the death penalty.
"From the facts of this case, the proteststaged by the convicts and other soldiers at the Maimalari Cantonment was not connected with "operations against the enemy."
" On the contrary, the soldiers were protesting against the negligence of the Federal Government and the military
authorities to motivate and equip them to take part in the "operations
against the enemy."
"Soldiers who were demanding for weapons to fight the satanic Boko Haram troops cannot, by any stretch of imagination, be said to have committed the offence of mutiny.
"In Cpl Segun Oladele & 22 Ors. v. Nigerian Army (2003), 36 WRN 68 the Court of Appeal painstakingly examined the ingredients of the offence of mutiny. In his leading judgment Aderemi JCA (as he then was) held inter alia: "That the accused persons are subject to service law; That the accused persons were given an order to carry out a military act; That the accused persons deliberately and by collusion disobeyed the order;
"That the disobedience and the acts strike at the foundation of discipline in the Army; That the accused persons used violence or threat of violence; That such act or acts were deliberately designed to put the Nigerian Army in imminent danger."
"In the instant case, the prosecution did not prove that the convicts were given an order to carry out a military act"; that they "deliberately and by
collusion disobeyed the order"; that the disobedience of the order was "in connection with operation against the enemy" and that the acts of the convicts "were deliberately designed to put the Nigerian Army in imminent danger.
"Since the prosecution failed woefully to prove the essential
elements of the offence, the General Court-Martial erred in law in
convicting the 12 soldiers for mutiny and sentencing them to death.
"In the case of Oladele & Ors v Nigerian Army (supra) the Appellants who were injured in the ECOMOG peace keeping operations in Liberia were flown to Egypt for medical treatment.
"On the day they were to return to Nigeria they protested violently at the Cairo Airport over the non-payment of their estacode. They were brought home and charged with mutiny, convicted and sentenced to various prisons terms including life imprisonment by a Court -Martial.
"In setting aside the conviction and sentences passed on the Appellants, the Court of Appeal observed thus: If anything at all, all they did was to protest the non-payment of their estacode.
"Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier traveled with some estacode and was emphatic that the appellants were not prohibited but there was no express provision for the payment of estacode to them.
"Based on thereasoning of the Court of Appeal in the Oladele’s case, we submit that the protest of the soldiers at the Maimalari Cantonment found justification in the indictment and removal of the GOC which led to his compulsory retirement from the Nigerian Army.
"In other words, the military authorities found that the complaints of the soldiers were not unfounded. Hence the GOC was removed and retired with immediate effect".
"In the circumstance, we submit that the trial of the convicts has been vitiated by the fact that they were wrongly and illegally charged with
conspiracy and mutiny contrary to the intendment of the law.
"Therefore, the decision of Court Martial cannot stand having being anchored on the wrong section of the Armed Forces Act. The convicts ought to be discharged and acquitted by the Chief of Army
Staff. See the cases of: Bakoshi v. Chief of Naval Staff (2004)
15 NWLR (PT 896) 268; Karim v. Nigerian Army (2002) 4 NWLR
(PT 758) 716 Akono v. The Nigerian Army (2000) 14 NWLR (PT 687) 318.
"The Prosecution did not prove beyond any reasonable doubt that the car of the GOC was fired at by any of the 12 convicts. In any case,
it was not established that the agitated soldiers wanted to kill the GOC. If there was a plan to kill the senior officer, he would been have shot
when he addressed the soldiers.
"But it was when he was going back to his office that his car was shot at, only once. Since each of the soldiers had not less than 30 rounds of ammunition at the material time they would have fired several shots at the car from all directions if they had planned to kill the GOC.
"Be that as it may, the 12 soldiers were found guilty of attempted murder and sentenced to death. It is submitted that the General Court-Martial erred in law in sentencing the convicts to death. Under
section 95 of the Armed Forces Act 2004, the punishment for attempt to commit a particular offence is the same as the punishment for that particular offence, provided that “if the offence is one punishable by death he shall not be liable to any greater punishment than imprisonment for life.
"Under section 106 of the same Act, the punishment for a person convicted of murder is death. Assuming without conceding that the 12
soldiers were convicted for attempted murder they ought to have been sentenced to life imprisonment by virtue of section 95 of the Armed Forces Act.
"Since the sentence of death was illegally passed on the convicts by the soldiers when it was not proved that they attempted to snuff life out of the former GOC, Major-General Mohammed the Chief of Army Staff should not hesitate to annul the said conviction and death sentence.
"Contrary to the general belief in military circles, a peaceful or violent demonstration or protest by soldiers does not constitute mutiny but insubordination. In the instant case, it is not in dispute that the convicts conducted themselves in a violent
manner during the protest held at the Maimalari Cantonment.
"Hence, they were rightly charged with insubordinate behaviour under Section 54 of the Armed Forces Act which
provides as follows: A person subject to service law under this who, strikes or otherwise uses violence to, his superior officer, or uses threatening or insubordinate language to his superior officer, is guilty of an offence under this section."
The senior lawyer insisted that the convicts were illegally charged with mutiny under Section 52(1) of the Armed Forces Act as the prosecution did not prove that the convicts disobeyed a military act in connection with any operation against the enemy.
The SAN further argued in the petition initiated pursuant to Section 149(1) of the Armed Forces Act (Cap A20) Laws of the Federation of Nigeria, 2004, the soldiers ought not to have been convicted as charged since there was no evidence that they wanted to kill the GOC.
While praying the military authority to temper justice with mercy by granting the convicts full pardon, Falana stated that the 12 soldiers ought not to have been charged with attempted murder, convicted and sentenced to death.
According to Falana, "We pray the confirming authority to temper justice with mercy by granting the convicts full pardon. Even though they were ill-equipped and ill-motivated they had fought the Boko Haram troops with courage, commitment and loyalty to their country.
"In the process they had lost many of their colleagues including the 10 whose corpses were brought to the Mailamari Cantonment. In considering the extenuating circumstances we are compelled to remind the confirming authority that the military high command confirmed the allegations of the soldiers who took part in the protest.
"Apart from removing the GOC and retiring him from the Nigerian Army, the authorities have adopted some measures to address the complaints of the soldiers involved in combat operations in the north east region."
It would be recalled that the Nigerian Army through its General Court Martial presided over by Brigadier-General Chukwuemeka Okonkwo, had sentenced to death by firing squad, twelve of the eighteen soldiers having found them guilty of mutiny.
The military General Court Martial equally sentenced one of the soldiers to twenty eight days Imprisonment With Hard Labour (IHL), while five others regained their freedom.
In delivering the death sentence, General Okonkwo held that Corporal Jasper Braidolor and ten others were found guilty of Counts 1,2 and 3 and were sentenced to death by firing squad.
The court also declared that Lance Corporal (Lcpl) Stephen Clement was found culpable in count 3 and 4, attracting death sentence, while Private (pte) Ichocho Jeremiah was guilty of Counts 5 and 6, which gave him a 28 days IHL.
The president of the Court Martial said, "These sentences are subject to confirmation," which suggests that same can be appealed against at the Federal Court of Appeal.
The condemned soldiers were court-martialed on a six-count charge of alleged involvement in mutiny on May 14, 2014 when they opened fire
at a car conveying the Commanding Officer, 7 Division in Maiduguri, Borno State, Major General Ahmadu Mohammed.
While fourteen of the accused were found guilty under different counts, four of them were discharged and acquitted of all charges.
The accused soldiers with their ranks and service numbers include:
96NA/ 42/6235 Cpl Jasper Braidolor
96NA/ 43/ 10277 Cpl David Musa
05NA/ 57/ 3451 LCpl Friday Onun
09NA/ 64/ 4905 LCpl Yusuf Shuaibu
09NA/ 62/ 1648 LCpl Igomu Emmanuel
09NA/ 64/ 4214 Pte Andrew Ngbede
10NA/ 65/ 8344 Pte Nurudeen Ahmed
10NA/ 65/ 7084 Pte Ifeanyi Alukhagbe
13NA/ 69/ 2898 Pte Alao Samuel
13NA/ 69/ 2907 Pte Amadi Chukwudi
13NA/ 69/ 2898 Pte Allan Linus
93NA/ 36/ 1542 Cpl David Luhbut
97NA/ 45/ 7423 Cpl Muhammed Sani
03NA/ 53/ 816 Lcpl Stephen Clement
09NA/ 62/ 1648 Inama Samuel
09NA/ 64/ 5858 Iseh Ubong
10NA/ 65/ 6912 Ichocho Jeremiah
10NA/ 65/ 7343 Sabastine Gwaba.
The sentenced soldiers were accused of rebelling at Maimalari cantonment, even as they blamed their GOC and other officers for the deaths of four of their colleagues. The condemned soldiers had posited that they were ambushed while on a special operation in Kalabalge Local Government Area near Chibok, where over 200 girls were abducted from the Government Secondary School.
The sentenced soldiers had equally alleged that
after the operation, during which some military equipment were recovered from the insurgents, the soldiers, who arrived the operation location at night, were asked to return to Maiduguri despite the pleading to be allowed to return the next morning, as the night trip would be too risky.
They further argued that they had to drive to Maiduguri at night and halfway through their journey, they were said to have ran into a Boko Haram ambush and with more than ten of them killed while some others were injured.
This, the sentenced soldiers maintained angered them, leading to their rebel against their superiors, with the GOC being fired at and forced to be replaced.
However, angered by this development, the military high command initiated the arrest of the convicted soldiers and instituted a military board of inquiry into the circumstances surrounding their conduct.
The Nigerian Army through internal memo, signed by the Commander, Army Headquarter Garrison, Mogadishu Cantonement, Brigadier General B.T. Ndiomu, directed the constitution of a General Court Martial which was presided over by Brigadier General Okonkwo.
Other members of the General Court Martial include the Judge Advocate, Colonel T.S Nurseman; Colonel T.O Olowomeye; Colonel I.G Lassa; Colonel J.K Feboke; Leutenant Colonel C.R Nnebeife; Major I Yusuf, Major T.A Yakubu and Major A.E Martins, while the lead
prosecutor is Leutenant Colonel A. A Audu, and Prosecutor 1 is Leutenant Colonel Ukpe Ukpe.
Brigadier General Okonkwo revealed that the condemned soldiers in line with rule 65 and 67 of Rules and Procedures of the Nigerian Armed Forces Law 1972 were slammed with a six-count charge that touches on mutiny, criminal conspiracy to commit mutiny, attempted murder, disobedience to particular orders, insubordinate behaviour contrary to and punishable under the law, and false accusation.
The army general also charged the eleven of the eighteen soldiers with criminal conspiracy to commit mutiny among others. Particularly, the General Court Martial President held that Corporal Jasper Braidolor and ten others inspired other military personnel of the 101 Battalion of 7 Division, to commit mutiny with other officers to kill the soldiers.
No comments:
Post a Comment