Unconstitutional decision of Court Martial in relation to mutinous soldiers

I WRITE to draw attention to the unconstitutional
decision of the Court Martial in which 12 soldiers
were sentenced to death. This is without prejudice
to the offence alleged to have been committed.
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.
The Supreme Court of Nigeria has decided in Gani
Fawehinmi v LPDC…"that whenever a procedure
allows admixture of the investigator, prosecutor
and judge
to be appointed or controlled by one authority, it is
impossible for the accused to obtain fair trial."
It is my opinion that the principles laid down by
the Supreme Court of Nigeria in Gani's case are
fully applicable to the decision of the Court Martial.
On this basis I request that:
1 You do not to confirm the decision of the Court
Martial because it is unconstitutional. The legal
framework upon which the Court Martial was
constituted is contrary to the Nigerian Constitution.
2 You approach the National Assembly to amend
the Armed Forces Act to bring it in conformity with
the Constitution so that Court Martial proceedings
will be
constitutional.
I trust that these will be done. Meanwhile, we will
challenge the constitutionality of the Armed Forces
Act in relation to Court Martial in court.
Dr. Agbakoba, (SAN) is a Lagos-based human
rights lawyer and a former NBA president.