Former President of Nigeria Bar Association, NBA, Dr. Olisa Agbakoba (SAN), has dragged the Nigerian Army General Court Martial before a Federal High Court sitting in Abuja, challenging its decision to convict and sentence 12 soldiers to death by firing squad for mutiny and other offences on September 16 according to a Vanguard report.
In Suit No. FHC/ABJ/CS/708/2014, Agbakoba, on behalf of the 12 condemned soldiers, is challenging the decision of the Court Martial on the ground that its composition was unconstitutional and contrary to Section 36(1) of the Constitution, which guarantees a fair trial to accused persons by a tribunal constituted in such manner as to secure its independence and impartiality.
In his affidavit in support of the Originating Motion, Agbakoba stated that all the members of the Court Martial were Army Officers appointed by the 2nd Defendant, Brigadier-General D. T. Ndiomu, Commander, Army Headquarters Garrison, Mogadishu Cantonment, Asokoro Abuja.
The affidavit also stated that the prosecutors, Lieutenant-Colonel A.A. Audu and Lieutenant-Colonel Ukpe Ukpe, are Army Officers also appointed by the 2nd respondent.
Dr. Agbakoba asserted that the independence and impartiality of the Court Martial was not secured in the trial of the soldiers.
He noted: “This is because all those who participated in the events related to the Court Martial are Army officers. They are the investigators, prosecutors, President, Judge Advocate, Waiting Member and other members of the Court Martial.”
The suit was filed under the Fundamental Rights (Enforcement Procedure) Rules 2009 seeking four reliefs;
1) a declaration that the convening and composition of Army General Court Martial, which convicted and sentenced 12 soldiers to death by firing squad for various offences on September 16, is contrary to Section 36(1) of the Constitution of the Nigeria, 1999;
2) a declaration that the decision of the Nigerian Army General Court Martial, presided over by Brigadier-General C. C. Okonkwo, delivered at the Army Headquarters in Abuja on September 16, whereby 12 soldiers were sentenced to death by firing squad, violated the right to fair hearing of the convicted soldiers;
3) a declaration that Section 133(3)(4) & (5) of the Armed Forces Act, dealing with the convening authority of Court Martial, is inconsistent with Section 36(1) of the Constitution and therefore null and void;
and 4) an order setting aside the decision of the Court Martial made on September 16.
The suit has not ye been assigned to a judge.