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NIGERIA: Open Letter to President Jonathan & the Defence Minister on Death Sentences for Maimalari Cantonment 12 – Femi Aborisade

September 23, 2014

Nigeria

Open Letter to:

President G.E. Jonathan

Nigeria’s Defence Minister & Chairman of the Nigerian Army Council

Why the Death Sentence passed on the Maimalari Cantonment Twelve should NOT be confirmed


I write you today as a Nigerian who had been incarcerated several times, defending the fundamental rights of Nigerians, and one who is also concerned about the fundamental right to life of the 12 soldiers who have recently been sentenced to death by the Court-martial.

2. I address this open letter to you in your capacities as defined in the Armed Forces Act, CAP A20, Laws of the Federation of Nigeria, LFN, 2010 as public officers who have the responsibility to confirm the finding and sentence of a court-martial and the power to “approve” any death sentence that may be passed by a court-martial in sections 9, 148 (3), 151 and 153 respectively before the sentence of death can be carried into effect.

3. According to media reports, 12 of the 18 soldiers tried by the General Court-martial were on 15 September 2014 convicted and sentenced to death, having been charged under section 52(1) and found guilty of mutiny and attempted murder, among other offences.

4. Under section 151 (1) (a) of the Armed Forces Act, the Confirming Authority (that is the Army Council in the instant case) shall withhold confirmation if the finding and sentence are unreasonable having regard to the facts of the case or if the decision is wrong on a question of law or that there was a miscarriage of justice.

5. It is on the basis of the provisions of section 151 (1) (a) of the Armed Forces Act that I appeal to both the Army Council through the Hon. Minister of Defence and Mr. President that the sentence of death should neither be confirmed nor approved by the Army Council and Mr. President, respectively.

6. Firstly, I argue that, on a point of law, it was wrong and illegal for the soldiers to have been charged under section 52(1) of the Armed Forces Act. Rather, if the soldiers must be tried at all, they should have been tried under section 54(1) instead of section 52(1).

7. Section 52(1) of the Act deals with allegations of having committed the offence of mutiny within the context of strengthening enemy forces and weakening the performance of the Nigerian Army against the enemy. In other words, section 52(1) envisages acts of mutiny within the context of actual battle in the war front, which was clearly not the case. It is only within the context of a war front situation that the elements of mutiny as spelt out by the Court of Appeal in CPL Segun Oladele & 22 Ors v. The Nigerian Army (2004) 6 NWLR (Pt. 868) 166 at 179, paragraphs B-E can be conjunctively, not disjunctively, established.

8. The circumstances that led to the setting up of the General Court-martial had nothing to do with actual battle front. The facts available to the public are to the effect that the soldiers, on 14th May 2014, the soldiers were protesting the avoidable deaths of their colleagues in the hands of the Boko Haram insurgents who have stronger fire power, the non-payment of their allowances, hunger and general neglect. These protests coincided with the visit of the General Officer Commanding the 7 Division of the Nigerian Army, Maj. General Abubakar Mohammed and the gory sight of several bodies of soldiers who had just been killed by Boko Haram insurgents at an ambush.

9. It would therefore appear that if the soldiers must be tried at all for their conduct, section 54 of the Armed Forces Act would have been more appropriate. Section 54 concerns behavior considered to be “insubordinate”. Insubordinate behaviour is defined under section 54 as the acts of striking or otherwise using violence against a superior officer or using ‘threatening or insubordinate language to the superior’. The penalty for the offence of ‘insubordinate behaviour’ is a term ‘not exceeding two years or any less punishment’.

10. Secondly and also on a point of law, it is wrong in law to have sentenced the Maimalari 12 to death on a charge of attempted murder.

11. Under section 95 of the Armed Forces Act, the punishment for an attempt to commit a particular offence is the same as the punishment for that particular offence, provided that “if the offence is one punishable by death he shall not be liable to any greater punishment than imprisonment for life”.

12. Under section 106 of the same Act, the punishment for a person convicted of murder is death. Therefore, on the strength of section 95 of the Armed Forces Act, the appropriate punishment for the Maimalari 12 ought to have been life imprisonment, even if they were found guilty of attempted murder they were charged with.

13. Thirdly, I support the argument of Femi Falana, SAN, who has made the point that considering the circumstances that compelled the soldiers in Maimalari Cantonment to allegedly attack GOC Abubakar Mohammed and the principle of law, which the Court of Appeal has established along similar cases as well as the embrace of the same principle by the Army Council in the case of Akure 27, we implore the Army Council and/or Mr. President to spare the lives of Maimalari 12!

14. To sum up, we urge the Army Council and/or Mr. President not to confirm or approve the sentence of death passed on the Maimalari 12 for the following reasons:

It is illegal to have tried the 12 soldiers under Section 52(1) of the Armed Forces Act. If the Maimalari 12 should be tried at all, they should have been tried under section 54 (1) of the Armed Forces Act (that is, insubordinate behavior), which prescribes a maximum term of 2 years imprisonment;
The penalty for attempted murder under a combined reading of sections 95 and 106 of the Armed Forces Act is life imprisonment not death;
The charge and the sentence of death are doomed to fail the test of the principle established by the Court of Appeal in similar cases, including CPL Segun Oladele & 22 Ors v. Nigerian Army (2004) 6 NWLR (Pt. 868) 166 at 179, paragraphs B-E, and
The death sentence passed on the soldiers complaining against internal sabotage of the ‘war’ against Boko Haram could be interpreted by the public as an encouragement to the Boko Haram insurgents.

Yours faithfully,

Femi Aborisade, Esq.

TUESDAY, SEPTEMBER 23, 2014. 7:05 p.m. [GMT]

Mr. Femi Aborisade is a Labor Law practitioner and a human rights advocate.

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