Former President of the Nigerian Bar Association (NBA), Olisa Agbakoba, has urged the Chief of Army Staff, Lt Gen. Kenneth Minimah, to refrain from confirming the decision of a Military Court Martial, which sentenced twelve soldiers to death for mutiny.
Agbakoba, in a letter to Minimah, which was also copied to the Attorney General of the Federation, Bello Adoke; Chief of Defence Staff, Air Chief Marshal Alex Badeh; Minister of Defence, Aliyu Gusau and Minister of State for Defence, Musiliu Obanikoro, argued that the decision of the Military Court was unconstitutional in that it flouted the rule of natural justice as enshrined in Section 36 of the Constitution.
Agbakoba, who is also a Senior Advocate of Nigeria (SAN), stressed that without prejudice to the alleged offence committed by the condemned soldiers, the decision of the Military Court was nonetheless unconstitutional, as the Army was the investigator, prosecutor and judge all rolled into one.
According to the letter, a copy of which was obtained by Daily Independent on Wednesday, Agbakoba said: “We fully understand that Military discipline is based on obedience to superior orders and that mutiny is a serious offence, yet the Nigerian Constitution guarantees a right to fair hearing to every Nigerian.
“The manner, procedure and process by which these condemned soldiers were sentenced to death is contrary to the Nigerian Constitution.”
The reason is because the Army was investigator, prosecutor and judge all rolled into one. This is contrary to the rules of natural justice as consecrated at Section 36 of the Nigerian Constitution.
“The constitution and composition of the Court Martial are fundamentally flawed, as they violate the fundamental rights of the convicted soldiers to fair hearing and trial as enshrined in the constitution.
“The Commander, Brig-Gen B.T. Ndiomu, who set up the Court Martial, is a party interested. He appointed all 9 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.”