In a letter on behalf of the soldiers written on December 19, 2016, Femi Falana (SAN), noted that the soldiers were charged with mutiny before courts-martial for demanding weapons to fight the well-equipped insurgents in the north east zone.
“In a bid to divert attention of the public from the criminal diversion of the huge funds earmarked for procurement of arms and ammunition to fight the terrorists, our clients were convicted and sentenced to death by the courts-martial which tried them in 2014,” the petition said.
Mr. Falana recalled that on the basis of a previous appeal, the authorities of the Nigerian Army commuted the death sentences passed on the soldiers to 10 years imprisonment. He then urged the president to go further and grant them pardon, recalling the president’s BBC Hausa Service interview on December 28 last year in which Mr. Buhari observed that the preceding government sent the soldiers to the battlefield without arms and ammunition to prosecute the war.
“That was what led some of them to mutiny,” he said to the interviewer. “They were arrested and detained because of this.”
Mr. Falana said that even assuming his clients committed any offence, they have suffered enough, having spent over three years in dehumanizing prison conditions.
Full text of the letter:
Alhaji Mohammadu Buhari,
President & Commander-in-chief,
of the Armed Forces,
Aso Rock, Abuja.
Request for presidential pardon for 70 convicted soldiers pursuant to section 175 of the Nigerian Constitution
We are counsel to the 70 soldiers who are currently held in custody at the Ikoyi and Kirikiri Prisons in Lagos State.
We have the instructions of our clients to write this letter of appeal to Your Excellency.
Our clients were charged with mutiny before courts-martial for demanding for weapons to fight the well equipped insurgents in the north east zone. In a bid to divert attention of the public from the criminal diversion of the huge fund earmarked for procurement of arms and ammunition to fight the terrorists out clients were convicted and sentenced to death by the courts-martial which tried them in 2014.
Although based on our appeal the authorities of the Nigerian Army have commuted the death sentences passed on the soldiers to 10 years imprisonment we are compelled to urge Your Excellency to grant them pardon on the following grounds:
1. The courts-martial which tried our clients deliberately failed to take cognizance of Section 179 of the Armed Forces Act which permits “a soldier, rating or aircraftman to make a complaint to his commanding office and that he shall not be penalized for having made a complaint”.
2. The Arms Procurement Panel set up by Your Excellency has confirmed that the huge fund earmarked for the purchase of arms and ammunition was criminally diverted by former services chiefs and other senior military officers.
3. The indicted military officers are currently being prosecuted by the Economic and Financial Crimes Commission for unlawful enrichment and criminal diversion of public funds.
4. In Oladele & Ors. v. Nigerian Army (2003) 36 WRN 48 the Appellants (23 soldiers) who were charged with mutiny and allied offences were convicted and sentenced to life imprisonment for protesting at the Cairo airport, Egypt over the non-payment of medical allowances. In setting aside the conviction and the sentences the Court of Appeal held inter alia:
“Mutiny is a criminal offence of a serious dimension. The pieces of evidence that I have reviewed supra 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 travelled 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…
The members of the armed forces are not excluded from the application of the provisions of Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc.”
Since the demand of the convicted soldiers and others for weapons 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.
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.”
In the light of the foregoing, Your Excellency will 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. But assuming without conceding that our clients committed any offence they have suffered enough having spent over 3 years in dehumanizing prison conditions.
However, since the demand for weapons to carry out counter-insurgency operations in the north east zone was legitimately made by our clients under the Armed Forces Act we urge Your Excellency to grant them pardon pursuant to Section 175 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
Please accept the assurances of our highest esteem and regards.
Femi Falana, SAN, FCI Arb.Share on Facebook