A former president of the Nigeria Bar Association (NBA), Dr. Olisa Agbakoba (SAN), yesterday faulted the death sentence handed to 12 soldiers for alleged mutiny.
In a letter to the Chief of Army Staff, Lt.-Gen Kenneth Minimah, the legal luminary said the verdict was an “unconstitutional decision”, adding that he would challenge the constitutionality of the Armed Forces Act in relation to Court Martial in court.
The 12 soldiers were sentenced on Tuesday to death by firing squad for mutiny and attempted murder after they fired shots at the General Officer Commanding, 7 Division, Maj.-Gen. Abubakar Mohammed, last May.
The soldiers were reportedly angry after sighting the dead bodies of their colleagues, who were killed when their convoy was ambushed by Boko Haram insurgents.
Five other soldiers were acquitted and one was sentenced to 28 days imprisonment with hard labor for being Away Without Official Leave (AWOL). All denied the charges at a Court Martial in Abuja.
Agbakoba, in the letter also copied to the Attorney-General of the Federation Mohammed Bello Adoke (SAN), said the manner, procedure and process by which the condemned soldiers were sentenced to death was contrary to the constitution.
The reason, he said, was because the army was the investigator, prosecutor and judge all rolled into one.
According to him, “this is contrary to the rules of natural justice as consecrated at Section 36 of the 1999 Constitution”.
The Senior Advocate of Nigeria said the composition of the Court Martial was fundamentally flawed and violated the fundamental rights of the convicted soldiers to fair hearing and trial as enshrined in the constitution.
He said: “The commander, Brig.-Gen. B.T. Ndiomu, who set up the Court Martial, is a party interested. He appointed the nine members of the Court Martial, namely the President, Brig.-Gen. C.C. Okonkwo, two waiting members, a judge advocate and two prosecuting officers and the investigators.
“The judge advocate, who is to assist the Court Martial on legal points, is far junior to the president of the Court Martial. By military tradition of obedience to superior orders, it is difficult for the judge advocate to give unwanted advice to the president of the Court Martial, who is a far superior officer.
“The Supreme Court decided in Gani Fawehinmi v LPDC…that ‘whenever a procedure allows admixture of the investigator, prosecutor and judge to be appointed or controlled by one authority, it is impossible for the accused to obtain fair trial.’
“It is my opinion that the principles laid down by the Supreme Court in Gani’s case are fully applicable to the decision of the Court Martial”.
Agbakoba, therefore, urged the Chief of Army staff not to confirm the Court Martial’s decision, as it was illegal.
“The legal framework upon which the Court Martial was constituted is contrary to the constitution”.
He further enjoined Gen. Minimah to “approach the National Assembly to amend the Armed Forces Act to bring it in conformity with the constitution so that Court Martial proceedings will be constitutional”.
“Meanwhile, we will challenge the constitutionality of the Armed Forces Act in relation to the Court Martial in court”, Agbakoba added.