19th December, 2014
Human rights lawyer, Mr Femi Falana (SAN) has condemned the sentencing of 54 soldiers to death. The soldiers were on Wednesday sentenced to death by firing squad for conspiracy to commit mutiny and mutiny by the Nigerian Army’s 7 Division General Court Martial.
Falana, who led the defence team, faulted the conviction of the soldiers in a statement Thursday, saying the court-martial refused to consider the evidence led in court.
According to him, “apart from the fact that the Prosecution did not lead any scintilla of evidence to prove the 2-count charge of conspiracy and mutiny against any of the convicts the Court-martial did not consider the defence of the soldiers in any material particular.
“We submit that the oath of allegiance taken by the accused soldiers 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.”
He said the convicted soldiers were sent on a suicide mission by army authorities, ill-equipped and poorly motivated.
“The soldiers were in the SF 111 Batallion which has 174 instead of 750 soldiers.
“The soldiers in the Batallion were neither equipped nor motivated. They are young men whose ages range between 21 and 25. Most of them joined the army in 2012.
“With little or no training whatsoever they were deployed to fight the dreaded Boko Haram sect,” Falana said.
Falana also accused the army hierarchy of diverting funds allocated for payment of salaries and allowances of soldiers and for purchase of arms and ammunition.
“Instead of bringing such unpatriotic officers to book, the military authorities have engaged in the diversionary tactics of wasting the lives of innocent soldiers by sentencing them to death without any legal justification,” he said.
PREMIUM TIMES reports that in a trial that began in October, the soldiers, from the 111 Special Forces, were charged with disobeying a direct order from their commanding officer, Timothy Opurum, a Lieutenant Colonel, to take part in an operation to recapture Delwa, Bulabulin and Damboa in Borno State from Boko Haram terrorists on 4 August.
Some of the accused soldiers testified that they refused to take part in the operation following the failure of the army to provide them with the necessary support equipment.
They explained that owing to a lack of equipment, they lost three officers, 23 soldiers plus 83 others suffering various degrees of injuries after their units were ambushed by Boko Haram fighters during an operation to retake the town of Bulabulin in Borno on 9 July.
Some of the accused soldiers said they did not attend the briefing where the operation was announced, while others said they did not join the mission because they were ill and there was no medical personnel attached to their unit to give medical assistance. Two other soldiers said they were given leave to attend to some administrative problems as at the time of the briefing.
Much of the trial was conducted in secret as journalists were barred mid-way into the deliberations.
PREMIUM TIMES obtained a copy of the closing addresses of the prosecution and defence just before the soldiers were convicted and sentenced. Below are some of the main points argued by opposing counsel.
The prosecuting counsel, J.E. Nwosu, an army captain, in his closing address, argued that the soldiers conspired to commit mutiny by refusing to obey a direct order from their commanding officer to take part in the operation.
Citing related cases and judgements, Mr. Nwosu argued that on the first count of conspiracy to commit mutiny, the accused need not have met, held a meeting or communicated with one another to fall foul of the charge.
“The situation was so terrible that commissioned officers had to drive operational vehicles themselves since Bn [battalion] drivers were part of the mutineers,” he said.
“All the actions of the accused soldiers happened at the same time and the prosecution contends strongly that they shared a common criminal intention to mutinise against the authority of 7 Div. The prosecution humbly submits that there must not be a formal meeting of the conspirators before they could be said to have conspired,” he said.
The defence team, made up of Femi Falana, a senior lawyer, and O.A. Oyebanji, a retired army major, opened its closing address by pointing out that its objection to the judge advocate of the GCM [General Court Martial], who is the legal adviser of the Commander, Army Headquarters Garrison, which conveyed the GCM handling the case, was overruled.
Citing definitions of mutiny from several legal authorities, the defence argued that the first count (conspiracy to commit munity) was a duplication and thus defective as conspiracy is embedded in the definition of mutiny. It also added that the count did not disclose the act of mutiny the soldiers conspired to commit.
“We, therefore, submit that count one is bad for duplicity,” the defence argued. “We also wish to submit that this charge as preferred is vague and ambiguous. The particular of offence didn’t disclose the actual act of mutiny which the 59 accused soldiers conspired to commit.
“My Lords, it is not part of our system of criminal justice that the contents of a charge should be subject of speculation and inference. The law is clear that the essential elements of an offence should be disclosed in a charge.”
Mr. Falana also said that the charge as it was presented violates the soldiers’ constitutional and human rights to fair trial and so should be quashed.
Arguing that the charge of conspiracy purports an agreement between two or more persons, he stated that the prosecution failed to prove that there were prior agreements by the accused to commit the alleged crime.
He argued that the court-martial lacks the jurisdiction to hear the case since the soldiers belonged to the 111 Special Forces Battalion and not the 7 Division.
He asked the GCM to dismiss the case on that ground.
On the second count of mutiny, Mr. Falana said the order from the commanding officer was an aberration of Nigerian military protocol where commanding officers are not allowed to pass orders directly to soldiers.
He said since the commanding officer did not follow laid down army protocol, the order was not legitimate and the soldiers were under no obligation to obey it.
Mr. Falana argued that soldiers demanding better weapon to fight the enemy could not be said to have been involved in mutiny.
“We, therefore, submit that the accused soldiers didn’t deliberately and by collusion disobey the order given by the Commanding Officer,” Mr. Falana said.
“They only requested for adequate support weapons commensurate to the weapons being used by the insurgents. They never said that they won’t fight rather they were ready and willing to fight if they are properly equipped. They had fought the Boko Haram insurgents with courage, commitment and loyalty to their country. They deserved commendation and not condemnation,” Falana said.