Advocates of justice and rule of law were united in their strident condemnation of the exclusion of 10 soldiers and a police officer from criminal charges in the case involving an alleged notorious kidnap kingpin, Bala Hamisu, a.k.a. Wadume, at its resumed trial at the Federal High Court, Abuja recently. The case came up again on Monday but the 10 alleged killer-soldiers led by a captain, Tijjani Balarabe, initially charged as Wadume’s accomplices in the horrific case, were absent.
The Attorney-General and Minister of Justice, Abubakar Malami, has taken over the prosecution from the police and removed names of the suspects, fuelling speculations, as it were, that there is more to it than meets the eye.
Undoubtedly, soldiers from 93 Battalion Takum, Taraba State, freed Wadume, who had already been arrested and handcuffed by the Intelligence Response Team of the Inspector-General of Police on August 6, 2019, as he was being taken to Jalingo, the Taraba State capital. But more horrific and inconceivable is the fact that the soldiers shot and killed three of the police officers and two civilians point blank, while five others sustained injuries. Force spokesman, Frank Mba, in a statement then, said, “… they were shot at by the soldiers despite sufficient proof that they were police personnel on legitimate duty.”
Since then, the Nigerian Army and police authorities have been embroiled in a brawl over which security agency should prosecute the soldiers. A Board of Enquiry and a Joint Investigative Panel (comprising soldiers and police) had concluded investigations into the matter before the President, Major-General Muhammadu Buhari (retd.), ordered the Defence Headquarters to take over the investigations.
It is worrying that a case as clear as the circumstances under which the police officers and some civilians were murdered, which smears the image and professionalism of the Army, is being obfuscated by the military authorities’ crass indifference to bringing the suspects to book 10 months after. The common feeling is that there is a deliberate plan to cover up this abominable act. Police investigation, according to media reports, says one of the soldiers exchanged 191 phone calls with Wadume between July 9 and August 6. Wadume had during his interrogation made useful statements to the police on the role the soldiers played, leading to his escape. Binta Nyako, a judge of the Federal High Court, had on March 16 ordered the Chief of Army Staff, or whoever custody the second to the 11th defendants are held, to produce them on March 30, 2020 for the purpose of arraignment. The military high command is yet to obey the court order.
The IG, Mohammed Adamu, had slammed 16 counts bordering on terrorism, murder, kidnapping and illegal arms running against Wadume, eight civilians, two police accomplices and 10 soldiers on January 21 when the case was first heard in court. Simon Lough, an Assistant Commissioner of Police, prosecuting the case on behalf of the IG, had told the court that the police met stiff resistance in their attempt to get the accused soldiers released, which led to the judge’s order.
On his part, Malami had cited “bureaucracy” as the reason for stalling the soldiers’ presence in court and the need to break it as his justification for taking over the prosecution. In its simplest form, bureaucracy means “excessively complicated administrative procedure.” What kind of procedure is so complex to stand in the course of justice? Following public outrage on the soldiers’ exclusion, a statement from the AGF’s media aide, Umar Gwandu, said the amendment was because the Army authorities were yet to release them and other defendants had to be brought to court to expedite the trial. Indeed, Malami’s statement is evidence of subterfuge or high-wired politicking in a purely criminal case. This makes a complete mockery of Nigeria’s justice system.
It all started when the military refused to surrender the accused soldiers for investigation. The Attorney-General and Commissioner for Justice, Taraba State, Sam Adda, confirmed this when he said, “It took the intervention of a lot of powerful and influential people to ensure that military authorities produced the captain in question in the first place for investigation.” What is happening?
No doubt, the 1999 Constitution, in Section 174, vests in the AGF the powers to take over; and to continue any criminal proceedings that may have been instituted by any authority or person; and to discontinue at any stage before judgement is delivered. But in exercising such powers, the Constitution emphasised in Section 174 (3) that the AGF “…shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” Nothing demonstrates so far that his action falls within this praxis.
What happens when a soldier breaks the law? Experts say if a crime violates both military and civil law, it may be tried by a military court, a regular court, or both. A military member cannot be tried for the same misconduct by both a military court and another federal court, but he can be tried for the same misconduct by both a military court and a regular court. The jurisdiction of the regular court is therefore not in doubt.
The military is wrong in shielding its officers and men from facing trial. The accused soldiers should not escape justice in this case. Even in military combat, soldiers are bound by rules of engagement, which forbids, among others, wanton killing of people. Israel demonstrated this when it jailed its soldier, Elor Azaria, for 18 months in March 2017, for killing a Palestinian attacker, Abdul al-Sharif, in the occupied West Bank. The deceased had stabbed an Israeli soldier, for which the convict reasoned that he “deserved to die.” But in the Nigerian soldiers’ case, it was a clear rogue operation, which should deserve maximum penal sanction in line with the laws of the land.
Malami has said his office had taken steps to procure the availability of the co-accused soldiers and would have them arraigned immediately upon their release by the military authorities. This is certainly not enough. Buhari, whose regime has been blighted by insecurity, with kidnapping writ large, should shake off his lethargy and demand action — justice. As the Armed Forces’ Commander-in-Chief, he should end this mess by ordering the military to obey the court order immediately. Buhari should ensure that justice is swiftly served.