Senior Correspondent, ISHAYA IBRAHIM, examines the implication of executing the death sentence on 12 soldiers recently convicted of mutiny by a court martial.
The Nigerian Army Council is now faced with a knotty situation in deciding the fate of the 12 soldiers of the Maimalari Barracks who were condemned on September 15 via firing squad on offence of mutiny.
The Council, whose responsibility includes discipline and administration of Army, could either uphold the ruling of the tribunal, commute it to imprisonment or discharge the accused persons. Members of the Council include the Minister of Defence (chairman), Chief of Defence Staff (vice chairman), Chief of Army Staff and Permanent Secretary of the Ministry of Defence (secretary).
There is already a precedence which the council could adopt in taking a decision on the fate of the 12 soldiers.
In 2008, soldiers at the Owena Barracks in Ondo State were sentenced to death by a military tribunal for protesting the non-payment of their peace-keeping allowances, by setting up bonfires. The Army Council at the time commuted the death sentence to 27 years imprisonment before freeing the soldiers. But they were dismissed from the army without benefits.
The Owena incident was, however, different from what happened at Maimalari. The Maimalari soldiers had on May 14 taken part in a riotous act which the military tribunal said was mutiny against their General Officer Commanding (GOC), Major General Abubakar Mohammed, while protesting the recurring deaths of their colleagues in the hands of Boko Haram terrorists.
Matters got to a head when bodies of their colleagues who were killed by Boko Haram fighters the previous night were brought into the barracks. The angry soldiers started hauling stones at Mohammed who was at the time addressing them. In the process, sporadic shots went into the air, and then at his bulletproof car. He managed to escape unscathed.
The grouse of the soldiers was that the indiscretion of the GOC led to the death of their colleagues. He was said to have ordered the soldiers to drive at night on a road frequently attacked by Boko Haram extremists. The soldiers initially refused, saying it was a suicide mission. But they eventually followed orders and were ambushed.
But the tribunal found the 12 soldiers, all within the rank of private and corporal, guilty of the mutiny charge and attempted murder of the commanding officer. It cleared five others from all charges while it sentenced one soldier 28 days with hard labour.
The ruling, though expected given military laws, was considered too harsh by analysts on the ground that the action of the soldiers was provoked by the thought that they were being set up for ambush by their own officers.
Also, the affected soldiers have become war-weary, having been fighting Boko Haram allegedly without sufficient arms and motivation. Even with the government allegedly spending N32.675 billion each month or N1.089 billion per day, for the battle against Boko Haram, the military is said to be ill-equipped and poorly motivated to counter the insurgents. As a result, the two mutinies that had taken place in Maimalari Barracks alone, in a space of one week, occurred because the soldiers complained of not having the kind of arms and ammunition Boko Haram fighters flaunted every time they engaged them in a fight, hence the cause of the several deaths of their colleagues.
Incidentally, Borno State Governor, Kashim Shettima, had told journalists in February this year, long before Boko Haram begun taking territories, that the sect was more motivated and equipped than the army.
“Honestly, Boko Haram (fighters) are better armed and better motivated than our own troops. I am an eternal optimist as I have always said, but I am also a realist. Given the present state of affairs, it is absolutely impossible for us to defeat Boko Haram,” he said.
The presidency, however, countered him through its spokesperson, Doyin Okupe: “If the insurgents have not been completely routed, it is due to the fact that our armed forces are severely constrained because of the fact that civilian settlements are also co-located in this vicinity, making selective engagement tenuous and difficult if heavy civilian casualty is to be avoided.”
Events in the last four months have shown that the army’s inability to rout Boko Haram was not because the terrorists are embedded in the civilian population as Okupe claimed, but lack of equipment.
So, even as the convicted soldiers feel they have a legitimate grouse against their superiors, they breached a sacred tenet in the military: discipline. Notwithstanding, it would be too harsh to kill a bunch of frustrated soldiers fighting an Islamist insurgency in the last five years while indeed no member of the sect has been sentenced to die, a concerned analyst, who pleaded not to be mentioned, noted.
Constitutional lawyer and human rights activist, Femi Falana, has implored the Army Council to commute the death sentence to imprisonment, instead of confirming it.
According to him, while the soldiers were erroneously charged under Section 52(1) of the Armed Forces Act Cap A20 because the GOC, whose car was shot at, was not killed, they were charged with attempted murder which does not attract death penalty.
Falana noted that in the interest of justice, the facts and circumstances of the mutinous act of the convicted soldiers should be taken into consideration.
“While mutiny cannot be condoned by the armed forces because it strikes at the foundation of discipline in the military, it ought to be pointed out that the 18 soldiers were erroneously charged under Section 52(1) of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004. Fortunately, the General Officer Commanding, whose car was shot at, was not killed. Hence, the soldiers were charged with attempted murder which does not attract the death penalty,” he said.
For former President of Nigerian Bar Association (NBA), Olisa Agbakoba (SAN), the composition of the court violated the principle of natural justice. “The court martial system is totally unconstitutional. They (soldiers) have the right to go to court and appeal the judgment. Actually, I have asked my lawyers to approach them and afford them our services to lodge an appeal.”
Agbakoba submitted that the offence for which the soldiers were tried and found guilty was undefined. He stated that Section 38(12) of the 1999 Constitution stipulated that all offences must be defined.
He said: “I have represented a number of soldiers at court martial. In particular, I represented Gen. JOJ Okoloagu and my point at the court martial was that a process that allows the commander to appoint the investigator, the court martial president, members and the judge advocate is clearly contrary to all principles of natural justice.
“The basis of justice is that everybody who has the power to decide has a duty to act fairly. Without prejudice to the offence, whether the person is guilty or not, he is entitled to a fair trial.”
For Fred Agbaje, a constitutional lawyer, if the soldiers were not pardoned, the judgment could dampen the morale of others currently fighting insurgents in the country.
“They can go to the Court of Appeal where the judgment of the court martial will be subjected to judicial scrutiny and review. Nothing in the Armed Forces decree can override the clear provisions of the 1999 Constitution, particularly Sections 6 and 36, dealing with judicial powers and fair hearing.
“It is not too late in the day if the issue of prerogative of mercy is also considered by the president now that the court martial is functus officio. The president should come in to exercise his prerogative of mercy,” he added.
