Lawyers speak on military’s quietness on indicted personnel in Taraba killings

More than two years after a suspected kidnap kingpin, who was apprehended in Taraba State, Hamisu Bala, notoriously known as Wadume, implicated some military personnel for allegedly masterminding his escape from the police, not much has been heard of the trial or conviction of the soldiers.

As the country that is beset with all forms of criminality, including extreme violence and kidnapping, citizens had expected accelerated prosecution and commensurate punishment for anyone found guilty of making the country unsafe for law abiding citizens, to serve as deterrent to others.

Unfortunately, it has become a tradition to keep the public in the dark or wallow in speculations over high-level criminal offences in the country. For many Nigerians, Wadumegate affirmed insinuations from some quarters that majority of crimes witnessed across the nation had the support of bad eggs in authority.

Wadume was first arrested on August 6, 2019 by a team of anti-crime police officers in Taraba State and was being taken to Jalingo, the state capital.

However, that move was aborted at a military checkpoint when soldiers attacked the vehicle carrying the suspect. The incident resulted in the death of three police officers and a civilian.

The news that went viral then was that some army officers on alleged order of a captain, Tijjani Balarabe had chased the police vehicle carrying Wadume to a police checkpoint and over-powered the police officers in the vehicle.

The Army officers were reported to have opened fire on the police at the check point. Before they could understand the reason behind the attack, the army personnel had killed three police officers and made away with Wadume to their barracks where they allegedly loosened the police handcuff on his hands and freed him.

The incident no doubt placed a heavy burden on the military and as such, expedient action was anticipated of the leadership to exonerate the entire military institution from perceived connivance or collaboration in the atrocities pervading the entire country.

When Wadume was later re-arrested in Kano State and taken to the Force Headquarters, he confirmed the speculations concerning involvement of some military personnel in that deadly operation.

He said:  “I have been hiding since then until now that the police arrested me again.”

Wadume’s controversial release by the suspected military men heightened Nigerians’ apprehension and despair over the security situation in the country.

On their own, the military did not deny the allegation. Rather, it blamed the attack on communication gap. Whatever factor the incident was blamed on, it nevertheless confirmed that its men were actually responsible for the attack on the police team and as such, they should be tried to prove whether or not the claim on communication was fictitious or a reality.

Perhaps, this was the reason behind the withdrawal of charges against the indicted military personnel by the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN).

Sometime in July 2020, Malami defended his decision to withdraw charges against the soldiers, when he was accused of shielding them. While refuting the allegation that his office was shielding the indicted soldiers, he stated that his action was aimed at allowing the army to court-marshal them and conclude its internal process before handing them over to him for prosecution.

“It is important for you to note that within the context of Nigerian law, there are certain provisions that are exclusive to the military within the context of law on court-martial and then, the internal discipline associated with the institution,” he had said.

According to him, the soldiers should not be charged before court-martial. “Ordinarily, there are in-house processes and procedures that are to be consummated. So, those that are handy for the purpose of prosecution cannot be held in custody for unduly longer period of time on the account of the absence of the military.

“So that is how the idea of severing the charges to allow those that are handy to stand their trial alone.

“That does not mean that by any means, the military are shielded and cannot be prosecuted, but if they have to be prosecuted, they have to be prosecuted within the context of the law. What is the law here? They are military personnel! First, they are to go through the in-house processes.

“There are two options, either to charge them before the court-martial, which is a special court established by law for the trial of soldiers or in the alternative for the military after consummation of the in-house processes hand them over for trial.”

The minister added then that his office had the constitutional duty of ensuring due process in such trials.

Speaking about the civilian suspect, Wadume, the minister noted that his office is constitutionally established to consider interest of justice, public interest and ensure there is no abuse in the judicial process.

“Within the context of public interest and the interest of justice, what we consider by way of fair hearing is that people that are charged to court are entitled to fair hearing, judicially determined within a reasonable time.

“Then, where people are charged multiple times on account of one reason or the other, they cannot collectively be brought before the court for arraignment on account that others are at large. Those that are available are entitled to have their case determined within a reasonable time.

“So, what has happened is perhaps a delay for a limited time to allow the processes recognised and realised by law to be consummated as they relate to the prosecution by the military as recognised by law and not in any way, intended to accord them protection to prevent them from being presented before the court,” Malami explained.

Malami has since charged Wadume on a 12-count charge of terrorism before the Federal High Court, Abuja Division, alongside Aliyu Dadje (a police inspector), Auwalu Bala (aka omo razor), Uba Bala (aka Uba Delu) Bashir Wazlri (aka baba runs), Zubairu Abdullahi (aka Basho) and Rayyanu Abdul.

Based on his explanation and considering the length of time between then and now, the question remains what has become of the indicted soldiers.

Also, while some lawyers agreed with Malami on the withdrawal of changes against the army personnel, some are equally of the opinion that considering the nature of the offence, which involved civilians, those soldiers should be brought before a conventional court for prosecution.

According to a Senior Advocate of Nigeria, Sebastian Hon, the Armed Forces Act, 2004 vested the General Court Martial with requisite jurisdiction over all military officers and personnel who commit offences in their line of duty. In that circumstance, Hon argued that civil courts cannot try them.

“In doing so, the General Court Martial can validly utilise the provisions of any applicable penal law, not necessarily the Armed Forces Act. That Court can consequently arraign such officers and men of the Army for conspiracy with civilians, abetting of offences committed by such civilians, being accessories before and after the facts of such offences,” he argued.

He added that with this foundation, those soldiers are also supposed to be arraigned before a General Court Martial for offences allegedly committed in the Wadumegate.

“I will be surprised if they are not so arraigned; and if that is the case, the so-called fight against hostage taking, banditry and terrorism will, as it is generally believed, be ensconced in the hollow conclave of a hoax,” he stated.

While Chief Festus Oguche agreed with Hon (SAN) on the issue of General Court Martial, he nevertheless expressed worries over application of martial law in clear cases of crime that are covered by penal codes and well outside military rules and engagement.

Oguche had no problem with the reasons given by the minister for withdrawing charges against the suspects as it sounded convincing, but he believed the decision of such court is subject to review or appeal by the regular court.

His words: “At the initial stage when there was indication that the charges against the soldiers who were alleged to have killed the policemen would be withdrawn, there was massive uproar against it.

“But the reason given by the AGF sounded quite convincing as it appeared then that a more thorough investigation was needed for the ascertainment of the extent of culpability or otherwise of the soldiers charged.

Gen. Farouk Yahaya

“We all know that it is also within the domain of court to determine the guilt or innocence of persons standing trial before it, but in spite of that, we agree with the AG’s position with the hope that at the end, justice would be better served if innocent persons are not put through the rigours and pains of trial or prosecution.”

“But then, one wonders how martial law would apply in clear cases of crime that are covered by our penal codes and well outside military rules and engagement. There is nothing in the existing law that excludes serving military personnel from criminal trial in the regular courts.”

Therefore, Oguche argued that court martial proceedings cannot be an immunity or shield against the arraignment and prosecution of military personnel in the normal courts, particularly in cases of such nature.

Agreed that every military personnel is subject to military law, he stated, the decisions of the military courts under Nigerian jurisdiction are equally subject to review or appeal by regularly constituted appellate courts.

He stressed that the notion of the court martial system being an omnibus judicial forum for the all-purpose determination of everything that concerns a military personnel is a misnomer.

According to him, the extent and jurisdiction of those courts are narrowed finely within the strictures of military engagements and tradition, and does not extend to the areas of the competence of the regular courts in criminal cases.

Chief Oguche added that the human rights activist, Femi Falana (SAN) appears vindicated in his initial fears that the withdrawal of the charges against the soldiers was necessarily meant to shield them from trial.

“This is so because till date, nothing is heard of any pending proceedings against them under court martial or an ongoing investigation to ascertain the extent of their involvement in respect of the allegations against them.

“It is clear that having stalled the proceedings against them in the regular courts by virtue of the withdrawal of the charges, the matter becomes as lifeless as a dead horse,” he declared.

For another Abuja-based human rights activist, Bar. Daniel Makolo, the incident happened at a police checkpoint and not a military barrack, and consequently should not be considered a military offence.

He said: “First and foremost, the military men opened fire on the police at a checkpoint.
So, it was not a military offence. The killing was not during war times. The police and the Army were not at war. So, it was not a military offence and as such, the military ought to disengage them and hand them over to be tried by the Federal High court as well.

“Anything else makes the military authorities suspect, such that makes people’s impressions to be established that the military have something to hide and the beer-parlour discussion in various places suggesting the likelihood of the mighty military giving her endorsement of taking a share in the kidnapping businesses going on in Nigeria. That will be a terrible news.”

All attempts to get response from the military on the stage of investigation or trial of the indicted personnel failed.