Human rights’ Lawyer, Femi Falana, SAN, has written President Muhammadu Buhari, urging him to pardon 70 Nigerian soldiers convicted for mutiny.
The military authorities had arrested the soldiers in 2014, for failing to confront Boko Haram insurgents.
They were sentenced to life imprisonment, but their jail sentence was commuted to 10 years under the current administration.
However, Falana is asking Buhari to let the soldiers off the hook.
He 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.
He said, “In prosecuting the war on terror, the Federal Government deployed thousands of ill-equipped and ill-motivated members of the armed forces to the North East region to fight the well-armed insurgents from 2013-2014. Not a few of the soldiers who survived the deadly attacks from the insurgents deserted the army.
“But majority of the dedicated members of the armed forces decided to defend the country's territorial integrity. They successfully defeated the Boko Haram sect and regained the areas which had been annexed by the terrorists. However, in the course of defending the country the patriotic troops demanded for arms and armament from the military authorities. Instead of attending to such legitimate demand, the military authorities accused scores of the soldiers of sabotaging the counter insurgency operations of the Federal Government and proceeded to set up courts-martial to try them for mutiny.
“We defended 58 soldiers while the remaining 12 were defended by other colleagues before the Courts-Martial which sat in Abuja. At the end of the trials in August and December 2014, the Courts-Martial jailed some of the soldiers and sentenced 70 others to death for mutiny. In convicting the 70 soldiers the Courts-Martial failed to appreciate that the demand for weapons by the soldiers was justified under 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 penalized for having made a complaint so far as the complaint does not contravene any provisions of the Act.
“The Courts-Martial equally failed to consider the case of CPL Segun Oladele & 22 Ors. v. Nigerian Army (2003) 36 WRN 68; (2004) 6 NWLR (PT 868) 166 where the Court of Appeal had quashed the sentence of life imprisonment imposed on the appellants for protesting against the injustice meted out to them by the military authorities. Speaking for the Court, Aderemi JCA (as he then was) held that "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 ground norm. 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."
“However, sequel to the representation made by our law firm in 2015 on behalf of the 70 convicts the death sentences passed on them were commuted to 10 years imprisonment by the military authorities. Shortly thereafter, the Presidential Panel on Arms Procurement confirmed that the huge fund earmarked for the purchase of arms and ammunition to prosecute the war on terror was criminally diverted by a coterie of unpatriotic military officers. Since the highly placed criminal elements who sabotaged the war on terror and exposed our country to eternal shame and ridicule have been identified and made to refund their loot the convicted soldiers ought to have been released from prison custody. But the convicts were made to spend the 10-year prison term. Notwithstanding the completion of their prison term the convicted soldiers ought to be granted pardon by Your Excellency.
“Basis of the request for presidential pardon for the 70 convicted soldiers. Having regards to the facts and circumstances of this case we are compelled to request Your Excellency to grant full and unconditional pardon to the 70 convicted soldiers pursuant to section 175 of the Constitution. The reasons for the request are as follows:
“Whereas the 70 soldiers were convicted and sentenced to death in August and December 2014 the then National Security Adviser, Col. Sambo Dasuki (rtd) announced at a public lecture delivered in London sometime in February 2015, that the arms and ammunition ordered by the Goodluck Jonathan administration would soon be delivered to the federal government. He claimed that some elements, whose identities he did not disclose were frustrating the nation’s efforts to get the critically needed equipment to prosecute the war on terror.
“During his pull out ceremony from the Nigerian Air Force, in July 2015, former Chief of Defence Staff, Air Marshal Alex Badeh who has since passed on, disclosed that the armed forces led by him lacked the equipment to prosecute the counter insurgency operations in the North East region.”
Falana noted that the Arms Procurement Panel instituted by Buhari had confirmed that the sum of $2.1 billion and N643 billion set aside for the purchase of equipment for the counter insurgency operations was diverted by some military officers and their civilian accomplices.
He said, “In view of the criminal diversion of the huge fund earmarked for acquiring military hardware for the defence of the nation the indicted military officers and their civilian collaborators ought to have been charged with mutiny, sabotage and other war crimes. But out of class solidarity, a few of the indicted military officers and civilians have been charged with the offence of money laundering at the Federal High Court by the Economic and Financial Crimes Commission.
“A respected former army officer, Major-General Ishola Williams (rtd) once said that the convicted soldiers were right in disobeying orders that would have led to their untimely death. While indicting the military authorities for sending the troops to the war front without adequate weapons the General said that “Those playing politics with the lives of these soldiers who were being sent to commit suicide in the name of fatherland and they refused, have to be ashamed. The army’s top hierarchy is covering up its weaknesses by court-martialing these soldiers. The staff from the HQ (defence headquarters) and the generals are to blame.”
“In the same vein, Your Excellency had alluded to the injustice to which the convicted soldiers were subjected in an interview aired by the BBC Hausa service on December 28, 2015. On that occasion Your Excellency made a strong case for the convicts when 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."
“After the conviction of the 70 soldiers another group of 3002 soldiers were accused of mutiny for equally demanding for weapons to fight the insurgents. As there were no facilities to try them the military authorities dismissed them from the Nigerian Army. However, following the representation made by us on their behalf, the 3002 dismissed soldiers have been recalled and reinstated. Since the dismissed 3002 soldiers and the 70 convicted soldiers were alleged to have committed the same "offence" they ought to be treated them in like manner.
“It is pertinent to inform Your Excellency that the Court of Appeal has upheld the appeal of 4 out of 70 convicts, discharged and acquitted them. The others who lost their appeal at the Court of Appeal have since taken the legal battle to the Supreme Court. Notwithstanding the pendency of the appeal at the apex court we urge Your Excellency to exercise your prerogative of mercy in favour of the entire 70 convicted soldiers.
“It is public knowledge that the Federal Government and some State Governments have recently granted pardon and rehabilitated hundreds of terrorists who had waged war against Nigeria and subjected unarmed citizens to egregious human rights abuse. The soldiers who were convicted of mutiny for demanding for weapons to fight such terrorist deserve to be granted pardon and rehabilitated by the Federal Government.
“In the light of the foregoing, we submit that since the armed forces were not equipped to defend the territorial integrity of the nation at the material time, the convicts did not commit mutiny or any other offence whatsoever in demanding for adequate weapons to fight the well armed insurgents. However, in line with the policy of Your Excellency’s Government to review the cases of the convicted soldiers the military authorities commutted the death sentences passed on them to 10-year imprisonment.
“Even though the convicted soldiers have since served the prison term in dehumanising conditions at the Kirikiri and Ikoyi correctional centres in Lagos State we are confident that Your Excellency will not hesitate to exercise your prerogative of mercy in their favour by granting them full pardon pursuant to section 175 of the Constitution.
“As we await Your Excellency's favourable consideration of our request please accept the assurances of our highest esteem and professional regards.”