18th January, 2016
Human rights lawyer, Femi Falana has written an open letter to Nigeria’s president, Muhammadu Buhari asking for presidential pardon for all convicted members of the armed forces.
Falana who defended the soldiers accused of mutiny in court, explained to Buhari that at the trials the only “offence” proved against the accused soldiers was that they had the temerity to demand for weapons to fight the well armed terrorists. But the soldiers whose cases were handled by us anchored their defence on Section 179 of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, 2004 which permits “a soldier, rating or aircraftman to make a complaint to his commanding officer and that he shall not be penalised for having made a complaint”.
READ Falana’s letter to President Buhari below:
Alhaji Muhammadu Buhari,
President & Commander-in-chief,
of the Armed Forces,
Aso Rock, Abuja.
Request for presidential pardon for all convicted members of the armed forces pursuant to section 175 of the Nigerian Constitution
In prosecuting the war on terror the Goodluck Jonathan Administration deployed thousands of members of the armed forces to the north east region and forced them to fight the well armed insurgents with weapons which were not serviceable. In the process, the country’s armed forces suffered humiliating defeat which led to the killing of about 25,000 soldiers and civilians including children and the displacement of over 2,000,000 people. To the disgrace of the nation the rampaging terrorists were allowed to annex 14 local governments from the territory of the Federal Republic of Nigeria whose inhabitants were subjected to abductions, sexual assault, extortion and other horrendous human rights abuses.
Not a few of the soldiers who survived the deadly attacks deserted the army. But the majority of the dedicated members of the armed forces decided to defend the country’s territorial integrity but demanded for arms and armament from the military authorities for the continuation of the fight against the insurgents. Instead of acceding to such legitimate demand the immediate past Chief of Army Staff, General Kenneth Minima (rtd) accused a number of soldiers of sabotaging the counter insurgency operations of the federal government and proceeded to set up courts-martial to try them for mutiny.
At the trials the only “offence” proved against the accused soldiers was that they had the temerity to demand for weapons to fight the well armed terrorists. But the soldiers whose cases were handled by us anchored their defence on Section 179 of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, 2004 which permits “a soldier, rating or aircraftman to make a complaint to his commanding officer and that he shall not be penalised for having made a complaint”. We also proved that the National Assembly had appropriated sufficient funds for arms procurement in line with section 217 of the Constitution which provides that “The Federation shall, subject to an Act of the National Assembly be equipped as made may be considered adequate ..” To prove that the funds had been criminally diverted by the military authorities and their civilian cronies we relied on the statement made by the then Chief of Defence Staff, Air Marshal Alex Barde who disclosed during his retirement ceremony that the armed forces led by him lacked the military hardware to fight the terrorists!
But in a desperate bid to cover up the criminal negligence of the military authorities the courts-martial discountenanced the unchallenged evidence of the soldiers and proceeded to convict them. Apart from recommending the immediate dismissal of all the convicted soldiers from the armed forces the courts-martial sentenced 70 of them to death and several others to various prison terms. However, due to lack of facilities to put another group of over 3,000 soldiers on trial for equally demanding for equipment General Minima ordered that they be dismissal from the Nigerian Army “with immediate effect.”
In view of the grave injustice which had characterized the trial of the convicted soldiers we made a passionate appeal to the current Chief of Army Staff, General Yussuf Butarai not to confirm the iniquitous findings of the courts-martial. We also appealed to him to recall the dismissed soldiers without prejudice to the suits which we had instituted on their behalf at the National Industrial Court. Upon coming to the conclusion that the ingredients of the offence of mutiny were not proved beyond reasonable doubt as required by law General Butarai commuted the death sentences passed on 66 out of the 70 condemned soldiers to 10 years’ imprisonment. He also ordered the recall and reinstatement of 3,002 soldiers who were illegally flushed out of the army by his predecessor.
Since the soldiers who have been reinstated and the scores of others who were convicted by the courts-martial were alleged to have committed the same “offence” General Butarai ought to have treated them in like manner. In other words, all the convicted soldiers should equally have been pardoned and reinstated without any conditions. More so, that the Arms Procurement Panel instituted by Your Excellency has confirmed that the sum of $2.1 billion and N643 billion set aside for the purchase of equipment for counter insurgency operations was allegedly diverted by the immediate past National Security Adviser, Col Sambo Dasuki and his several accomplices. It has been further revealed by the Panel that another sum of 42 billion and N69 billion for procurement of arms for the Nigeria Air Force was equally diverted by a coterie of serving and retired military officers and their civilian accomplices.
In Your Excellency’s interview aired by the BBC Hausa service on December 28, 2015 you rightly observed that “The government at that time sent the soldiers to the battlefield without arms and ammunition to prosecute the war. That was what led some of them to mutiny. They were arrested and detained because of this.” Your Excellency will therefore agree with us that since the armed forces were not equipped to defend the territorial integrity of the nation the convicts did not commit mutiny or any other offence whatsoever in demanding for adequate weapons to fight the well armed insurgents. We are therefore compelled to urge Your Excellency to exercise your prerogative of mercy in favour of the all convicted members of the armed forces pursuant to section 175 of the Constitution.
In urging Your Excellency to pardon the convicted soldiers we are not unaware of the belief in military circles that a protest by members of the armed forces constitutes mutiny. As the belief does not represent the current state of the law we are compelled to draw Your Excellency’s attention to the case of Cpl Oladele & 22 Ors v Nigerian Army (2003) 36 WRN 48. In that case 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 medical allowance. Upon their return to Nigeria they were charged with mutiny before a court-martial which convicted and sentenced them to life imprisonment.
However, the conviction and the sentences passed on the 23 soldiers were set aside by the Court of Appeal. Having regards to the facts and circumstances of the case, Aderemi J.C.A (as he then was) had this to say:
“Mutiny is a criminal offence of a serious dimension. The pieces of evidence that l reviewed have not shown that the appellants disobeyed any order deliberately nor did they use any violence. 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.”
In the same vein, in the case of Corporal Oliver & 26 Ors v Nigerian Army, a contingent of soldiers staged a violent protest at Akure, Ondo State on July 4, 2008 over the non-payment of the operational allowances due to them during another peace keeping mission in Liberia. 27 of the soldiers who were identified as ring leaders of the protest were charged with conspiracy and mutiny before a court-martial which convicted and sentenced them to life imprisonment. But pursuant to our petition the then Chief of Army Staff, General Ihejerika commuted the sentence of life imprisonment passed on the convicted soldiers to 7 years’ imprisonment on the ground that there was no justification for withholding the legitimate entitlements due to them and their colleagues. Shortly thereafter, the case was revisited and the convicts were granted full pardon.
Since the demand of the convicted 70 soldiers and others found justification in the criminal diversion of the huge fund provided for the purchase of arms and armament to fight the terrorists there was no legal and moral justification for the conviction and sentences imposed on them by the courts-martial. No doubt, General Butarai identified the gross injustice meted out to the soldiers. But instead of quashing the unjust findings of the courts-martial he merely reduced the death sentences passed on 66 out of 70 condemned soldiers to 10 years imprisonment. In order to ensure that justice is done in this case we urge Your Excellency to pardon all members of the armed forces who were convicted by military courts for demanding for adequate weapons to fight the Boko Haram terrorists.
In urging that the convicted soldiers be granted reprieve and full pardon permit us to draw Your Excellency’s attention to the cautionary words of the Court Of Appeal in the case of Cpl Oladele v Nigerian Army (supra) where the Justices unanimously held:
“Let it be said that members of the armed forces in this country have not denounced their membership of the Nigerian society and it seems to me that they cannot do so in a manner calculated to jettison the provisions of the Nigerian Constitution, the grundnorm.
The members of the armed forces are not excluded from the application of the provisions of the Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc. “
While undertaking to provide further information which may be required by Your Excellency in respect of this petition please accept, as usual, the assurances of our highest regards.
Femi Falana SAN