SOLDIERS' LEGAL RIGHT TO PROTEST - Femi Falana SAN

SOLDIERS' LEGAL RIGHT TO PROTEST - Femi Falana SAN

In the last three months, two sets of soldiers totaling 64, were charged with conspiracy to mutiny and mutiny before a court-martial which sat in Abuja. The  "offence" proved against the accused soldiers was that they demanded for adequate weapons to fight the well-equipped and well-motivated troops of the dreaded Boko Haram sect. Although there was no scintilla of evidence to substantiate the charge of mutiny  against them the military judges  discharged and acquitted 12 of the accused soldiers  and convicted and sentenced 58 others to death. As the verdict is characterized by gross miscarriage of justice the defence team  has strongly urged the confirming authority to quash the questionable conviction and the sentence. 

In challenging the death penalty imposed on the soldiers some persons have defended the right of members of the armed forces to request for equipment in fighting the war on terror in the north east region. Piqued by the growing rejection of the death penalty prominent Nigerians  the military authorities issued an angry statement last week, warning politicians and activists against  actions capable of inciting or endorsing indiscipline in the Nigerian Armed Forces. According to  the Director of  Defence Information, Maj.General Chris Olukolade,  the call became necessary in view of the statement credited to a politician that “ soldiers have the right to protest for the Federal Government’s failure to fully equip them”.  He advised those commenting on the matter to realize that the actions of the military authorities were justified in law.

However,  a retired army general, Ishola Williams, has said that the convicted soldiers were right in disobeying orders that would lead to certain death as a result of the failure of their commanding officers to provide them the necessary equipment. The respected general  who was the Chief of Defence Operations, Planning and Training, at the Defence Headquarters, Nigerian Army before resigning in 1993 said that  “Those playing politics with the lives of these soldiers who were being sent to commit suicide in the name of fatherland and they refused, have to be ashamed. The army’s top hierarchy is covering up its weaknesses by court-martialing these soldiers. The staff from the HQ (defence headquarters) and the generals are to blame.

 

Contrary to the general belief in military circles, a demand made by soldiers does not constitute mutiny per se. In the case of Oladele & Ors v Nigerian Army (2003) 36 WRN 48, the Appellants who were injured in the ECOMOG peace keeping operations in Liberia were flown to Egypt for medical treatment. On the day they were to return to Nigeria, they protested violently at the Cairo Airport over the non-payment of their estacode. They were brought home and charged with mutiny, convicted and sentenced to various prisons terms including life imprisonment by a Court Martial. In setting aside the conviction and sentences passed on the Appellants, the Court of Appeal observed thus:

 

“Mutiny is a criminal offence of a serious dimension. The pieces of evidence that l have reviewed supra have not shown that the appellants disobeyed any order deliberately nor did they use any violence. If anything at all, all they did was to protest the non – payment of their estacode. Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier traveled with some estacode and was emphatic that the Appellants were not prohibited but there was no express provision for the payment of estacode to them”

 

 

In the light of the reasoning of the Court of Appeal in theOladele’s case, we submit that in demanding for adequate support weapons the convicted soldiers did not engage in violence. To that extent their demand found justification in fact and in law. In his oral evidence before the Court Martial, Lt-Col T Opurum, the Commanding Officer who was the first prosecution witness (Pw 1) stated  that  the unit was ambushed on 9 July 2014 by the terrorists  and that a total of 3 officers and 23 soldiers were killed in that attack while about 82 others had various degrees of injuries. PW1 further told the court that on 4 August 2014 when he ordered  the convicted soldiers and others to advance and capture Delwa, Bulabulin and Damboa they demanded for adequate to avoid another tragic encounter with the terrorists.

In their defence the convicts admitted that they demanded for equipment to  fight the Boko Haram insurgents who were armed with weapons like Anti Aircrafts, APCs, BMGs, RPGs and AK47s. Each soldier was only armed with aAK47 and 60 rounds of ammunition. They said that sequel to the tragic development, PW 1 promised that adequate weapons would be provided for any other operation as the terrorists "have superior fire power." He was quoted as saying, “ I, Lt-Col Opurum will not take soldiers in my battalion to the war front again without adequate weapons." The promise was not kept when PW 1 asked the convicts and other soldiers to confront the terrorists on August 4, 2014.  

 

Unlike  the 8 soldiers who deserted the army the convicted soldiers responded to the call for reinforcement on 18 August 2014, when Delwa was attacked by the insurgents. As the army headquarters in Maiduguri had provided weapons the convicts  extricated the commander and others from the terrorists . During cross examination PW 1 admitted that the minimum strength of a Battalion in the Nigerian Army is about 750-800 personnel whereas he had just 174 soldiers and that the terrorists were equipped with "superior fire power". On the allegation that the convicts requested for weapons PW 1 admitted that all other soldiers involved in the operations against insurgency had made a similar demand.

 

In view of the lack of equipment which led to the tragic killing of 3 officers and 23 soldiers by the insurgents in July it cannot be said that the demand for weapons to engage in the operations against the enemy constituted mutiny. Indeed, the request for adequate support weapons is justified by Section 217 (2) of the 1999 Constitution which provides that “The Federation shall, subject to an Act of the National Assembly made in that behalf equip and maintain the armed forces as may be considered adequate ...”

 

 No doubt, the accused had subscribed to the oath of allegiance to   defend the territorial integrity of the nation but the oath 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. The failure of the Federal Government to provide adequate weapons recently led President Jonathan to request for a loan of $ 1 billion to purchase military hardware for the armed forces to fight the terrorists. Although the request was granted there is no indication that the weapons have been acquired!

In 2008, 27 soldiers were convicted and sentenced to life imprisonment by a court-martial which sat at Akure, Ondo state.

The soldiers who had taken part in the United Nations peace keeping operations in Liberia embarked on a violent street demonstration to protest the diversion of their operational allowances by some officers. Based on the representation made by us on behalf of the convicts reason prevailed and the confirming authority commuted the life imprisonment to 7 years. On a further review of the case the convicts were pardoned. As in the instant case, the authorities initially believed that soldiers had no right to protest against injustice.

It is germane to draw the attention of the military authorities to section 179  of the Armed Forces Act, Cap A20. Laws of the Federation of Nigeria, 2004 which permits a soldier, rating or aircraftman to make a complaint to his commanding officer who is obligated to address the complaint. Under no condition shall  the complainant   be penalised for having made a complaint so far as the complaint does not contravene any provisions of the Act. In this case, the complaint of the convicted soldiers pertaining to lack of adequate weapons to fight terrorism was made in accordance with the Armed Forces Act and the Constitution. In the circumstance, the charge  of mutiny is illegal and unconstitutional in every material particular. Permit us to refer once again to the case of Cpl Segun Oladele & 22 Others v Nigerian Army supra, where the Court of Appeal held that:

 

“Let it be said that members of the armed forces in this country have not denounced their membership of the  Nigerian society and it seems to me that they cannot do so in a manner calculated to jettison the provisions of the Nigerian Constitution, the grundnorm.

 

The members of the armed forces are not excluded from the application of the provisions of the Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc."  

     

Conclusion

 

 The convicts soldiers would have been guilty as charged if they had vamoosed or deserted the army when ordered to advance. They never said that they won’t fight. But having regard to the casualties of July 9 due to the superior fire power of the terrorists they rightly demanded for support weapons. And when adequate weapons were made available on August 18, 2014 they fought with courage, commitment and loyalty to their country and routed out the insurgents. They deserved commendation and not condemnation. Having requested for weapons in exercise of their constitutional right the convicts did not commit the offence of mutiny or any offence whatsoever. In the circumstance, they ought to have their conviction and sentence quashed by the confirming authority.