In a trial that began in October, the soldiers, from the 111 Special Forces, were charged for disobeying a direct order from their commanding officer, Timothy Opurum, a Lieutenant Colonel, to take part in an operation to recapture Delwa, Bulabulin and Damboa in Borno State from Boko Haram terrorists on August 4.
Some of the accused soldiers testified that they refused to take part in the operation following the failure of the army to provide them with the necessary support equipment.
They explained that owing to a lack of equipment, they lost three officers, 23 soldiers plus 83 others suffering various degrees of injuries after their units were ambushed by Boko Haram fighters during an operation to retake the town of Bulabulin in Borno on July 9.
Some of the accused soldiers said they did not attend the briefing where the operation was announced, while others said they did not join the mission because they were ill and there was no medical personal attached to their unit to give medical assistance. Two other soldiers said they were given leave to attend to some administrative problems as at the time of the briefing.
Much of the trial was conducted in secret as journalists were barred mid-way into the deliberations.
PREMIUM TIMES has now obtained a copy of the closing addresses of the prosecution and defence just before the soldiers were convicted and sentenced. Below are some of the main points argued by opposing counsel.
The prosecuting counsel, J.E. Nwosu, an army captain, in his closing address, argued that the soldiers conspired to commit mutiny by refusing to obey a direct order from their commanding officer to take part in the operation.
Citing related cases and judgements, Mr. Nwosu argued that on the first count of conspiracy to commit mutiny, the accused need not have met, held a meeting or communicated with one another to fall foul of the charge.
“My Lords, as the court held in Nwosu Vs The State (supra), proof of how the conspirators connected with or among themselves is not necessary,” he said. “Indeed these soldiers need not know each other. They need not have even started the conspiracy at the same time. Also express words need not pass between each and every one of the conspirators who do not even have to meet physically.”
He said the soldiers were walking “lackadaisically” in camp and refused to attend the briefing. He said they refused to leave their trenches and tents even after the commanding officer personally went to them individually to plead with them to be part of the operation. He said the soldiers’ demand for provision of adequate support equipment before they take part in the operation was a “hollow excuse.”
“The situation was so terrible that commissioned officers had to drive operational vehicles themselves since Bn [battalion] drivers were part of the mutineers,” he said. “All the actions of the accused soldiers happened at the same time and the prosecution contends strongly that they shared a common criminal intention to mutinise against the authority of 7 Div. The prosecution humbly submits that there must not be a formal meeting of the conspirators before they could be said to have conspired,” he said.
Mr. Nwosu argued that the soldiers were guilty of mutiny as charged for refusing to obey a direct order from a superior to take part in an operation for which they are paid. He said the soldiers chose to join voluntarily and should have explored the available channel of leaving if they felt they cannot cope.
“My Lords, as very senior officers, you are aware that the (Nigerian Army) is not a conscript army. Joining the NA [Nigerian Army] is a voluntary act and if a service personnel feels he cannot cope, there is a procedure for discharge which these soldiers are familiar with. The NA is not an organization with a trade union where members down tools to protest poor wages or poor working conditions.
“We strongly argue that their decision not to participate in the operation was not excusable. The prosecution submits that this second element has been proved before the court and therefore urges the court to so hold.”
The defence team, made up of Femi Falana, a senior lawyer, and O.A. Oyebanji, a retired army major, opened its closing address by pointing out that its objection to the judge advocate of the GCM [General Court Martial], who is the legal adviser of the Commander, Army Headquarters Garrison, which conveyed the GCM handling the case, was overruled.
Citing definitions of mutiny from several legal authorities, the defence argued that the first count (conspiracy to commit munity) was a duplication and thus defective as conspiracy is embedded in the definition of mutiny. It also added that the count did not disclose the act of mutiny the soldiers conspired to commit.
“We therefore submit that count one is bad for duplicity,” the defence argued. “We also wish to submit that this charge as preferred is vague and ambiguous. The particular of offence didn’t disclose the actual act of mutiny which the 59 accused soldiers conspired to commit.
“My Lords, it is not part of our system of criminal justice that the contents of a charge should be subject of speculation and inference. The law is clear that the essential elements of an offence should be disclosed in a charge.”
Mr. Falana also said that the charge as it was presented violates the soldiers’ constitutional and human rights to fair trial and so should be quashed.
Arguing that the charge of conspiracy purports an agreement between two or more persons, he stated that the prosecution failed to prove that there were prior agreements by the accused to commit the alleged crime.
“My Lords, from the totality of evidence adduced in the course of this trial, the prosecution has failed to establish that there was an agreement between the 59 accused soldiers to commit mutiny.
It is strongly contended that the prosecution has failed to establish the existence of any previous agreement to be mutinous in the face of irrefutable evidence that all the accused soldiers were not in the same place on that day so could not have formed the necessary common intention to ground a charge of conspiracy.”
He argued that the court-martial lacks the jurisdiction to hear the case since the soldiers belonged to the 111 Special Forces Battalion and not the 7 Division. He asked the GCM to dismiss the case on that ground.
On the second count of mutiny, Mr. Falana said the order from the commanding officer was an aberration of Nigerian military protocol where commanding officers are not allowed to pass orders directly to soldiers. He said since the commanding officer did not follow laid down army protocol, the order was not legitimate and the soldiers were under no obligation to obey it.
“Was the order legitimate and did the order followed the normal and standard procedure in the Nigerian Army for such an order? The obvious truth is that a Commanding Officer has no business giving operational orders or order to advance directly to soldiers. It is within the general service knowledge that a Commanding Officer is not expected and should never descend to the level of directly giving an order to a platoon or section to advance.”
Mr. Falana argued that soldiers demanding better weapon to fight the enemy could not be said to have been involved in mutiny. He also added that from evidence provided during the trial, the accused soldiers have distinguished themselves in previous combats with the insurgents and thus could not be accused of cowardice.
To buttress the gallantry of the soldiers, the defence counsel recalled how the soldiers were mobilised to extricate their commanding officer and other soldiers who had been pinned by superior fire from Boko Haram in Delwa on August 20. He said the soldiers did not only carry out the mission successfully, but also managed to recapture the town from the insurgents.
“We therefore submit that the accused soldiers didn’t deliberately and by collusion disobey the order given by the Commanding Officer,” Mr. Falana said. “They only requested for adequate support weapons commensurate to the weapons being used by the insurgents. They never said that they won’t fight rather they were ready and willing to fight if they are properly equipped. Their actions rather than strike at the foundation of discipline have ensured cohesion and unity. They had fought the Boko Haram insurgents with courage, commitment and loyalty to their country. They deserved commendation and not condemnation.”
In a statement Thursday, Mr. Falana faulted the conviction of the soldiers, saying the court-martial refused to consider the evidence led in court.
“Apart from the fact that the Prosecution did not lead any scintilla of evidence to prove the 2-count charge of conspiracy and mutiny against any of the convicts the Court-martial did not consider the defence of the soldiers in any material particular,” said Mr. Falana.
“We submit that the oath of allegiance taken by the accused soldiers is not a license to commit suicide. It is a solemn undertaking to defend the nation based on the expectation that the Federal Government would have complied with Section 217 of the Constitution on the mandatory requirement to equip the armed forces adequately.
He said the convicted soldiers were sent on a suicide mission by army authorities, ill-equipped and poorly motivated.
“The soldiers were in the SF 111 Batallion which has 174 instead of 750 soldiers,” said Mr. Falana, a Senior Advocate of Nigeria.
“The soldiers in the Batallion were neither equipped nor motivated. They are young men whose ages range between 21 and 25. Most of them joined the army in 2012.
“With little or no training whatsoever they were deployed to fight the dreaded Boko Haram sect.”
Mr. Falana also accused the army hierarchy of diverting funds allocated for payment of salaries and allowances of soldiers and for purchase of arms and ammunition.
“Instead of bringing such unpatriotic officers to book the military authorities have engaged in the diversionary tactics of wasting the lives of innocent soldiers by sentencing them to death without any legal justification,” Mr. Falana said.