23 Dec 2014

Mutiny: Falana asks Army Chief to pardon convicted soldiers

Human rights lawyer, Mr. Femi Falana (SAN), has asked the Chief of Army Staff (COAS), Lt-Gen. Kenneth Minimah, not to confirm the conviction and sentence passed on the 54 soldiers last week by the General Court Marshal (GCM), saying that the verdict was characterised by miscarriage of justice.

Falana, in a comprehensive analysis of the case to Minimah argued based on the totality of the facts before him, it was clear that the GCM failed to evaluate evidence before it in accordance with settled principles of law.

In the analysis, Falana added that the court did not consider the defence of the accused soldiers and thereby engaged in a miscarriage of justice.

The senior advocate said apart from the fact that the President and members of the GCM are not lawyers, the Judge Advocate failed “woefully to guide them in his summing-up” the entire case.

Falana disclosed that throughout the trial, the accused soldiers were handcuffed in the court hall, noting that even some of them who were taken to the bank to collect their salaries were handcuffed inside the banking hall.

He said all efforts to persuade the GCM to respect the fundamental rights of the accused soldiers to fair hearing and ensure that they were unfettered fell on deaf ears.

Falana, citing the case of Oladele and others vs Nigerian Army, argued that contrary to the general belief in military circles, protests by soldiers do not constitute mutiny.
“At the commencement of the trial, the defence vehemently objected to the participation of the Judge Advocate in the General Court-Martial (GCM). Our objection was based on the fact that as the Assistant Director of Legal Service in the Army Headquarters Garrison, he is the legal adviser to the Commander, Army Headquarters Garrison who convened this GCM. His schedule of work includes reviewing of all cases in the Army Headquarters Garrison and advising the Commander on how to dispose of the cases.
“It was our contention that having participated in the investigation and inquiry into the subject matter or review of this case, he ought not to act as the Judge Advocate in this GCM in line with Section 134 (2) of the Armed Forces Act. Although the GCM overruled our objection, the Judge Advocate misled the President and members of the GCM who are not lawyers but saddled with the responsibility to try the offence of mutiny which attracts the death penalty.

“Owing to the misleading sum-up by the Judge Advocate, the GCM was unable to evaluate the evidence before it and apply the law properly. Not surprisingly, the GCM members engaged in grave miscarriage of justice by failing to consider the defence of the accused soldiers and the serious points of law canvassed on their behalf. We are compelled to urge the Chief of Army Staff not to confirm the conviction of the accused soldiers and the death sentence passed on the soldiers.

“The grave errors and material defects in count 1 also breached the provisions of Section 36 (6)(a) of the Nigerian Constitution which entitles the accused soldiers to be informed of the details and nature of the offence(s) they are charged with. We therefore humbly submit that the defects are material, misleading, capable of miscarriage of justice and more importantly, it has infringed on the accused soldiers’ fundamental right to fair trial.

“The GCM failed to appreciate that 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. Evidence abound that these particular soldiers have recorded many successes in all operations or tasks given to them since they were launched into the theater of war in September 2013 when availed all necessary support weapons. We wish to observe that the only time (9 July 2014) that they suffered high casualties, it was due to lack of adequate support weapons.

“Contrary to the general belief in military circles, protest by soldiers does not constitute mutiny. In the case of Oladele & Ors v Nigerian Army, 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 Oladele and Other v Nigerian Army supra, the Court of Appeal held that the violent protest of the soldiers that took place in Egypt was justified having regard to the facts and circumstances of the case. In the instant case, PW 1 said that other soldiers involved in the operations in the north-east region had asked for weapons to confront the Boko Haram insurgents who are armed with more sophisticated weapons. PW 2 admitted that the accused soldiers asked for weapons on August 2014. He also admitted that the Boko HAram insurgents were well armed; hence, the tactical withdrawal of the soldiers from Delwa on August 18, 2014 when they were attacked by the insurgents. In view of the lack of equipment which has led to the tragic killing of officers and soldiers by the insurgents, it cannot be said that the demand for weapons to engage in operations against the enemy constituted mutiny.

“No doubt, the accused had subscribed to the oath of allegiance to defend the territorial integrity of the nation. We submit that the oath is not a license to commit suicide. It is a solemn undertaking to defend the nation based on the expectation that the federal government would have complied with Section 217 of the Constitution on the mandatory requirement to equip the armed forces adequately. The failure of the federal government to provide adequate weapons has led to the losses recorded in the war against terror. Permit us to refer once again to the case of Cpl Segun Oladele & 22 Others v Nigerian Army supra,

“It is the duty of court at all times to scrupulously examine, analyse and weigh every item of evidence before it in order to assess the probative value of the testimonies and statements made. It is also the duty of a court or tribunal or any adjudicating body to limit itself to the evidence before it and not go fishing for evidence, or take extraneous issue or belief or view into consideration. Zuru v Chief of Naval Staff (2003) Vol 32 WRN 86 at 91. Specifically in Nigerian Army v Major Jacob Iyela (2009) Vol.4 WRN 1 at 28, it was held that: “No court worth its salt will lose sight of the trite law that in the process of adjudication, it must do so in accordance with settled principles of law.’”
Credit: ThisDay

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