A Senior Advocate of Nigeria, Sebastine Hon, has faulted the ruling of the military tribunal that sentenced 54 soldiers to death on November 22.
Mr. Hon described the secret trial and eventual conviction of the soldiers by the military tribunal as unconstitutional, null and void.
“The trial and conviction of the 54 soldiers should be assumed not to have taken place,” Mr. Hon said.
He drew attention to Section 36(3) of the 1999 Constitution which provides that all criminal trials be conducted in public, noting that the secret trial of the suspects, amounted to gross violation of the law.
“Let it be sounded out in crystal clear terms that Section 36(3) of the 1999 Constitution has guaranteed certain inalienable rights termed fundamental rights.
“Superior courts of records in Nigeria, including the Supreme Court, have held that these rights are above the ordinary laws of the land, in this case, including military laws and rules,” Mr. Hon said.
He cited the cases of Randome-Kuti vs. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 SC; WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 at 304 SC; and Essien vs. Inyang (2012) All FWLR (Pt. 628) 951 at 967 CA, etc, to buttress his argument.
All the 54 soldiers were from the 111 Special Forces Battalion attached to the 7 Division of the army were found guilty of mutiny.
They were accused of disobeying a direct order from their superior officers to take part in an operation to dislodge Boko Haram fighters from Delwa, Bulabulin and Damboa in Borno State.
The soldiers said they refused to take part in the operation because the army did not provide them with the required combat and support equipment they needed for such operations.
Earlier in September, 12 soldiers were also sentenced to death by firing squad for shooting at a car conveying their Commanding Officer, Maj-Gen. Ahmed Mohammed.
They were found guilty of inciting mutiny against the GOC at the Army’s 7 Division, Maimalari Barracks in Maiduguri, on May 14.
The soldiers revolted after some of their colleagues were ambushed and killed by Boko Haram extremists, an attack they blamed on their superior officer.
Mr. Hon said the Supreme Court in a recent ruling in a case of the Nigerian Army vs. Aminu-Kano (2010) All FWLR (Pt. 528) 1805 at 1832 SC, had held that the fundamental rights provisions of the Constitution apply to all Nigerians, including members of the Armed Forces.
He said, “It is in the light of the above that I submit on most firm grounds that the secret trial and conviction of 54 soldiers by a military tribunal is null and void on the ground that it infringes on Section 36(3) of the Constitution.
“Be it noted that this Subsection has specifically outlawed secret criminal trials by a “court or tribunal.” A military tribunal, without any iota of doubt, is covered by these provisions.”
Mr. Hon, however, argued that the failure of the defence counsel, Femi Falana, to raise an objection against the secret trial by the military tribunal has robbed him of the opportunity to do so at the appellate court.
He expressed optimism that the trial, conviction and sentence of the 54 soldiers will be voided at the Court of Appeal.