On September 16 2014, a court martial in Abuja sentenced to death by firing squad 12 soldiers of the 7th Division of the Nigerian army in Maiduguri, Borno State, for mutiny. It also convicted the soldiers of criminal conspiracy and attempt to commit murder, for which they were sentenced to life imprisonment.

The events leading to the court martial occurred on or about May 14, 2014 when the soldiers allegedly shot at the General Officer Commanding (GOC) of the 7th Division, Major-General Abubakar Mohammed. The soldiers reportedly felt that their superior officers, under the leadership of General Mohammed, had shown a callous disregard for the lives of their junior colleagues, sending them on a mission that had a high level of risk to their lives. The risky timing of the mission, they believed, could have been changed to avoid the near certainty of the men being ambushed by Boko Haram. They were thus protesting against an apparent failure of responsible judgment and a duty of care by their superior officers.

The incident of May 14 was an embarrassment to both Nigeria and our armed forces. It was further evidence of the deplorable state of affairs within the army and it came at a time when the army was under intense scrutiny of the international community on their professionalism and commitment to human rights. The whole world had also been wondering why our armed forces were unable to search and rescue over 200 schoolgirls abducted from Chibok.

PREMIUM TIMES does not in any way condone the actions of these soldiers. Using violence to express frustration and dissent is never justified. There are due processes, which should be followed to register displeasure and discontent. Investigating the incident and punishing the misconduct is right and proper.

However, the death sentence meted out to the soldiers is deeply flawed and condemnable on many grounds. To begin with, it is arguable that the charges preferred against the soldiers were disproportionate to what actually transpired. There is no evidence that anyone was hurt during the protest for which the soldiers were charged and condemned. It would indeed be a tragic commentary on the state of the Nigerian army if so many armed soldiers with the intention to kill were unable to inflict any harm on their target.

The more likely story is that these soldiers acted without intent to kill. If so, an essential element of the crime for which they were charged was not present.

Secondly, there were several mitigating factors. The credible allegations of corruption, high rate of combat-related mortality, non-payment of allowances to fighting men on the frontlines and absence of rotation are all factors that easily mitigate the charges. In law, these factors, together, support a defence of provocation or, alternatively, of post-traumatic stress disorder.

There are serious doubts whether the court martial under the Army Act complied with the essential rules of fair hearing. The guarantee of fair hearing in criminal proceedings under Nigeria’s Constitution requires a clear separation of the roles of the prosecutor, judge and defence. Yet, in a court martial, the Army is the investigator, prosecutor, defence counsel, and the judge. This is akin to placing soldiers charged before a court martial beneath the protections provided for in our constitution. We agree that persons who opt to go into the armed forces subject themselves to a special regime with its own forms of discipline. We draw the line, however, at any suggestion that our men and women in uniform should thereby be placed outside the protection of the Constitution.

These clear flaws persuade us in PREMIUM TIMES that in this case, capital punishment cannot be supported or justified. Indeed, the facts of this case demonstrate the savagery of the death penalty as a form of punishment altogether. Legalized killing in the name of justice or in this form is both insidious and hypocritical. It is murder.

Above all, far from engendering discipline at a time that we need it most in our armed forces, the fate of these valiant men could seriously undermine discipline in the armed forces, which is the bedrock of military ethics. No action has been taken to address the corruption at senior levels of the armed forces that exposes our country to the mortal threat by what was thought to be a rag-tag insurgency. It is corruption and the associated poor weaponry and equipment available to the armed forces that have exposed our men and women in uniform to avoidable death and danger. Until this problem is addressed, our fighting men and women will feel that they are being led to slaughter by a country unfit for their sacrifice.