Soldiers sentenced to death: Inside story of court martial

By The Citizen
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Unfair trial? The 'Embattled 12', as they are now referred to in the media, have been sentenced to death for rebelling against their superior officers

A military court martial sentenced 12 out of 18 soldiers to death for mutiny and other offences. Their fate - and hope - now lies with the Appeal Court that the decision of the military court is upturned. But what really happened at the court martial? How was the final verdict reached? Weekly Trust reports.

The fate of 12 solders sentenced to death earlier in the week in a military court for mutiny and other offences appears bleak. Until an Appeal Court quashes the judgement of the General Court Martial which sentenced them, it will remain so. Jasper Braidolor, David Musa, Friday Onuh, Yusuf Shuaibu, Igonmu Emmanuel, Andrew Ugbede, Nurudeen Ahmed, Ifeanyi Alukagba, Alao Samuel, Amadi Chukwuma, Alan Linus, and Stephen Clement were handed death sentences after being found guilty of 'criminal conspiracy, mutiny, attempt to commit murder, among other offences'.

Eighteen soldiers were initially standing trial for firing shots at the General Officer Commanding (GOC) of the newly-created 7 Division of the Nigerian Army, Major-General Ahmed Mohammmed, in Maiduguri in May. Twelve of the convicted soldiers were sentenced to death, five were discharged and acquitted while the remaining one was jailed for 28 days with hard labour by the military court presided over by Brigadier-General Chuckwuemeka Okonkwo.

The outcome of the trial, which most Nigerians awaited with bated breath, shocked a nation already weary from losing many of her military sons in the North-East. As expected, the outcome has drawn public outcry with some within the military applauding the action as necessary for restoring discipline within the armed forces. But in legal circles, the process has been faulted, even described as 'improper, imprecise, duplicated and not triable by Law'.

So it was that the 'Embattled 12', as they are now referred to in the media, were sentenced to death for rebelling against their superior officers, and therein lies the controversy. Counsels to the accused persons argued that accounts of what really happened put doubt on whether the offences, which the accused persons were charged with, took place at all. 'Witnesses were at best contradictory. What is more, there's no clear evidence linking the accused with the offences,' said Lead Counsel to the accused persons, Barrister Emmanuel Enokela Anebi Onyilo-Uloko, a retired Wing Commander, in an interview with Weekly Trust.

Barrister Onyilo-Uloko also said the conviction was based on circumstantial evidence. 'There is no direct evidence, per se, and the law is clear that for a conviction to be on circumstantial evidence, that evidence must be cogent, it must be unequivocal.' He added that there's no evidence actually linking anyone with a specific action, 'It was just a general thing, that once your name is mentioned, you are convicted.'

Barrister Onyilo-Uloko said in the case of the alleged shot at the GOC's vehicle, it was not brought to court for counsels to determine whether it was actually shot at. 'They just brought the picture and said there was a scratch at the back. That could have been any car, anywhere. The GOC's car was not brought before us and would've been the poorest evidence that would be brought before a court.' He added that only a picture was brought.

Barrister Onyilo-Uloko told Weekly Trust that the evidence before the court is that more than 100 people did the shooting. 'They brought in only 18, when they claimed that more than 100 shot at the GOC's car,' he explained, adding that there was also no collaboration of witness statements by anyone, neither was there an identification parade to identify the real culprit in the mutiny saga as required by law.

Another Defence Counsel, Barrister Boniface Bassey also faulted the procedure followed in the trial. 'Normally for men to be tried, under the service law, there are procedures, what they call a Board of Inquiry (BOI) would be set-up, which would then recommend a court martial to be set-up and inaugurated before a trial would begin. He said: 'This is a trial that the accused person is not totally in control of, he is not in charge of his own affairs. At this point, they were already in detention and every accused person is supposed to be innocent until proven guilty. Ordinarily, just as they arranged for witnesses for themselves they ought to have equally arranged for witnesses for the accused persons, as well, which was not done. The witnesses that testified were summoned by the defence counsel, and the unfortunate thing was that some of the witnesses came and became intimidated.'

The defence counsels said it was based on the apparent loopholes in the judgement that they have approached the Court of Appeal for a reverse of the verdict. Weekly Trust investigations showed that three key principal actors in the saga were also witnesses presented by the authorities to the army council. They include Major-General Ahmed Mohammmed, the GOC himself as well as his second-in-command, Lieutenant Colonel Agenda Emmanuel and the Division's RSM, Dikko Kaura.

In a witness statement dated May 20, 2014, the GOC opined that he was informed on May 14 that soldiers were becoming unruly at the Division's hospital over the death of their colleagues who were that were on their way from Chibok. He said: 'On getting to the hospital, I found the soldiers shouting that we were sacrificing them by sending them to fight without helmets, fragmentation jackets and support weapons. As soon as they saw me, they started advancing towards me; some of them were throwing stones while others were firing in the air. At this point, Colonel A.B Mohammed insisted that I leave the environment. As soon as the soldiers got close enough to my vehicle, they opened fire at me. As my vehicle was evacuating me out of the barracks, some were seen pursuing me to cut off my extrication. I was evacuated to 7 Division by escort.'

The GOC also said the troops of 101 Battalion had on May 9 withdrawn from an offensive over excuses like inadequate protection, lack of fire support and others, so he had to address them on the need to be disciplined.

On why the men shot at him, the GOC said: 'I cannot imagine the reason because there are other troops in the Division that have spent over a year without misbehaving. The values of the profession have been eroded; the level of training is unacceptable.'

In his own account, Lieutenant Colonel Emmanuel, the second-in-command to the GOC, said on May 13 he had gone to see the 21 Brigade Commander, Brigadier-General Akomolafe over a location for the deployment of the unit and also drove to the Division headquarters to see the GOC on the same issue. He said when he got to the Primary School where the unit was camped, there was confusion and he met a soldier crying and when he enquired, he was informed that troops of the unit who were returning from an assignment at Chibok ran into an ambush some 18 kilometres away from Maiduguri. 'I tried calming the soldier who at this point was shouting on top of his voice that officers are killing them. I then organised a platoon to go for rescue. Since I hadn't enough vehicles, I released my vehicle to lift some of the troops,' he explained.

Brigadier-General Akomolafe said he had to leave the venue to report the development to his superior officer, who he could not reach on phone due to network problem. He said when he returned however, soldiers were already agitated and shouting that he connived with the GOC to kill them. 'I tried to pacify them but they threatened to shoot me if I don't leave the school. They started firing sporadically and I had to ask a colleague to take me back to the Division,' he said, adding that the following day, a rescue team brought some victims of the ambush to the military hospital. 'The corpses of four soldiers were in the Hilux; Colonel Ekparari, who I had met at the hospital, called the doctors to move the bodies to the mortuary but the doctors were busy. A short while later, soldiers stand milling round. I reminded Colonel Ekparari about moving the corpses to the mortuary and he called the doctor but they only succeeded in moving the corpses to the back of the hospital.'

Brigadier-General Akomolafe said of the soldiers, 'Their attitude was becoming unruly. I tried talking to them but they wouldn't budge.' He said was still with them when the GOC appeared. 'On sighting the GOC, the soldiers went wild. They started throwing stones. Efforts to get them to stop failed. All of a sudden, they started firing. At that stage, the GOC was rushed to the vehicle and I pushed Colonel Ekparari into the hospital where we took refuge.'

In his interrogation form obtained by Weekly Trust, Lieutenant Colonel Agenda said the ambushed team was supposed to remain in Chibok for 3 days, but were suddenly withdrawn on the order of Colonel A.B Mohammed. On whether they were mandated that they must return to Maiduguri, he said: 'I wouldn't know.' He continued: 'The instruction for their withdrawal wasn't passed through me, but through one Captain Yahaya, the commander of the group.'

Lieutenant Colonel Agenda said the troops went to Chibok with six Hilux vans but only three were recovered after the attack, as the insurgents went away with the rest. He also said one officer and five men were killed in the ambush, while 15 sustained injuries. On what he thinks is responsible for the men's misconduct, he said they felt betrayed. 'They had this erroneous impression that certain people, including myself, were responsible for the casualty the unit suffered.''

On whether the men shot at the GOC or just at the car, he said 'I would not know. I stood with my back to the GOC, facing the soldiers. When they started firing, it was sporadic and everyone scampered for safety.'

The RSM on his own part said he was woken from sleep to the reality of that moment, but has the same story as the second-in-command.

Counsels to the accused persons and top lawyers like Femi Falana, Olisa Agbakoba and Fred Agbaje were unanimous that the men must have just reacted the way they did on sighting the corpses of their colleagues and that the action was not in any way a premeditated one.

Agbakoba, according to media reports flayed the judgment and threatened to go to court to seek justice for the convicts. He said that the process through which the court martial passed the sentences on the soldiers was 'unconstitutional'. He maintained that the composition of the court violated the principles of natural justice and vowed to defend the convicts at the Appeal Court. He also submitted that the offence for which the soldiers were tried and found guilty was undefined, stating that Section 38 (12) of the 1999 Constitution stipulates that all offences must be defined.

'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,' Agbakoba noted. He submitted that the Army Act that defines the work for the court martial system is unconstitutional because the basic offence contained in the Army Act is that you are charged for an offence said to be prejudicial to service discipline. 'That is what the law says - conduct prejudicial to service discipline. But conduct prejudicial to service discipline is an undefined offence contrary to Section 38 (12) of the Constitution and the court has said that offences must be defined,' he explained.

Agbakoba also pointed out that the soldiers were erroneously charged as the GOC whose car was shot at by the soldiers was not killed. 'The soldiers were charged with attempted murder which does not attract death penalty. In the circumstance, the 12 convicts should have been charged under Section 52 (2) of the Armed Forces Act which provides for life imprisonment,' he said.

Defence Counsel, Barrister Boniface Bassey submitted that the fundamental ground of appeal is fair-hearing. 'The prosecution was supposed to prove the accused guilty, in this case as far as we are concerned, the prosecution did not prove the charges in which they were convicted. It was like mob action, it's like saying you went to the market and there was a riot and you now arrested a few people for trial, victims of circumstance, people who were just there, and not part of the rioting mob.'

However, Brigadier General Olajide Laleye, Army spokesman, said the conviction followed due process. 'The conviction was within the law and all procedures were followed and adhered to according to the dictates of the constitution. The army is a lawful organization that follows every legal procedure. As for the morale of troops, it is higher now than ever, that's why troops have been recording victories in the North-East,' he said.

Brigadier-General Laleye added: 'Those people saying the soldiers should not be convicted should know that without discipline, Nigeria might as well disband the army.'

A military source toldĀ  Weekly Trust that in most military trials, accused persons are not allowed to have legal representation, while in others, they aren't even allowed to produces evidence or call witnesses. 'In instances where witnesses are invited, accused soldiers or officers may not be given a chance for cross-examination.' He added that military judges can impose punishment such has hard labour, demotion, imprisonment, dismissal, dishonourable discharge, forfeiture of salary and death sentences depending on the type of offence, but accused persons 'must be proven guilty beyond a reasonable doubt.'

The source, a retired Colonel in Kaduna, added that in the case of soldiers recently sentenced to death for mutiny in Maiduguri, he said it is difficult to conclude their guilt, adding that they have the right to appeal under the constitution and the appeal may be heard by a civil court. He said civil courts have overturned several military judgments and 'This one may not be an exception. But the charges against the 12 soldiers sentenced to death were weighty, even in the civil court.' He added that the motive of the court-martial may be genuine, but it is also possible that authorities could have constituted it to score points from the political class. He said the Presidency may likely intervene on the matter and take a different position.

Meanwhile, Nigerians continue to cry out in outrage, on the pages of newspapers and on social media, where a campaign with the hashtag #KillCorruptionNotOurSoldiers is rising in popularity. Whether that will work and help the case of the 'Embattled 12' remains to be seen. Daily Trust