Al-Mustapha

Nasiru Suwaid

“Apart from what the court saw, the verbatim recording also assisted the court: their retraction was not enough to invalidate their earlier statements made under oath. The fact that they were discharged and acquitted in the sister case by the Court of Appeal is not a magic-wand on the court, because each case has its own peculiar nature.”

-Justice Mojisola Dada at Igbosere High Court, Lagos

It is just like the Second World War’s Nuremberg Trials, which was essentially a judicial inquisition on whether the acts of inferior military officers on the orders of superior lieutenants could necessarily implicate them in a situation where such an activity was adjudged a crime. The trial and conviction of Major Hamza Al-Mustapha was a watershed in the annals of the history of Nigerian jurisprudence, when an officer purporting to act in the protection of his principal crossed the line between what is legally acceptable and the expectation of providing protection to the number one citizen of the nation, with the just assumption that any likely threat to the Commander-in-Chief is easily equated with declaration of war on the republic. In fact, the convicted chief security officer to the Head of State duly submitted what he thought to be the latitudinal width of his functions to include: “curtailing, repelling and managing all aggression to the seat of power.”

The question though is whether giving effect to a criminal act fall under the premises of curtailing, repelling and managing aggression to the person of a presidential sovereign. In the instant case as against the Nuremberg Trials, the defendant justifiably placed the authority of all his actions on the carnal context of his duties  as the protector of the first family, who are the representative embodiment of Nigerian state. At no time did the accused accept responsibility for commission or an omission in the criminal act. In fact, the convicted security official strenuously tried to break the umbilical cord ties of conspiratorial suspicion between him and persons established to have carried out the dastardly act. Principally, the duo of Sergeant Barnabas Jabilla alias Rogers and one Abdul Katako were confirmed as members of the much dreaded Strike Force specifically set up by Major Hamza Al-Mustapha as the Chief Security Officer of the Head of State, to aid him in discharging of the function and responsibilities of his office.

The trial took the duration of 13 years passing through a retinue of five judges, critically showing the prosecution was struggling with a want of evidence.  Indeed, the state had to bring into its fold the two individuals suspected of committing the act, by offering them a plea deal to stand as witnesses for the prosecution, to implicate the defendant as he then was with a latent promise of non-diligent prosecution of them in the court thereby introducing and operating a plea bargain deal through the back door, a concept that is clearly illegal within the codified premises of the Nigerian criminal law and the extant width of the procedural law applicable in this jurisdiction. Indeed, the opener quotation judicial dictum of the trial judge was a Freudian slip, which explains the murky web of the processes and procedures that highlighted the position placement of the trial in the context of diligent adherence to the general rules of procedural law.

Generally, it is of essential importance to note the convicted Hamza Al-Mustapha did not aid his case by adopting delay tactics and introducing irrelevant conspiracy theories to a case primarily concerned with his guilt or innocence to a prima facie murder charge. But under our extant legal norms, the onus is never for him prove his innocence. Rather, it is for the state to establish his culpability in the commission of the crime through lawful unveiling and availing of evidence that are likely to implicate the convicted defendant. The state as a prosecutorial authority is an embodiment of judicial integrity, which must conduct its affairs above and beyond suspicion of ill motive. For were it to be any different than expected, its qualified actions should not be more than ungracious pettiness of a mob action, which acts on a raw motif of revenge rather than fair application of the rule of law.

The conviction of the defendant has clearly laid a number of questions on the intricate procedure that accompanied the process. How could a system that could not obtain a valid conviction for the direct parties who acted the offence was able to logically interdict the original conspiratorial brain behind the exercise? Notwithstanding the questions about a military-obtained confession bereft of an attorney for the confessor, should such evidence be able to stand, even when the parties who made it later allege duress, thus seeking withdrawal of the confession. I hope the acknowledgement of the acquittal of the persons suspected to have given effect to the crime in the verdict by a superior court of record is not a prophetic clairvoyance on the likely fate of the current conviction should it be subjected to a more dispassionate judicial review of an appellate court. Yet, should such a scenario were to happen, it would be a historic opportunity missed to sell the superior dictum of the rule of law over petulant pettiness of the whims of men no matter the height of their earthly grace of public office.


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