Femi Falana On Al-Mustapha’s Freedom, An Indication Of Defective Judicial System
August 5, 2013 – Major Al-Mustapha’s Freedom, An Indication Of Defective Judicial System – Femi Falana
Under the Ibrahim Babangida junta, politically motivated killings were rife in several parts of the country. The refusal by the police to investigate such killings lent credence to allegations of official involvement. The gruesome assassination of a prominent journalist, Dele Giwa, by a parcel bomb in Lagos on October 19, 1986 was covered up by the junta.
The gallant attempts by the late Gani Fawehinmi SAN to ensure the prosecution of those who were suspected to have masterminded the nefarious deed, were officially frustrated. However, the Sani Abacha junta devised a dubious method of shielding official assassins from being exposed. Whenever any opposition figure was killed by the Strike Force, accusing fingers were quickly pointed at the family members or political allies of the deceased. Thus, sequel to the brutal murder of Kudirat Abiola in Lagos on June 4,1996 by unknown gunmen, some members of the Abiola family and chieftains of the National democratic Coalition (NADECO) were hurriedly arrested, detained and interrogated by the police on suspicion that they committed the heinous crime!
The Indictment of the Murder Suspects
Upon the restoration of civil rule in May 1999, President Olusegun Obasanjo instituted the Special Investigation Panel which probed the murderous activities of the Strike Force from 1993-1998. Some of the operatives made confessional statements on the murder of Mrs Abiola, the attempted murder of Chief Alex Ibru, Chief Abraham Adesanya, Isaac Poubeni et cetera. In particular, it was disclosed by the suspects that they carried out the iniquitous crimes on the orders of Major Hamza Al-Mustapha, the ex-Chief Security Officer to the late maximum ruler, General Sani Abacha. Upon the completion of investigation, the Police charged the former Chief of Army Staff, General Ishaya Bamaiyi; the former Lagos State Commissioner of Police, Mr. James Danbaba; Major Al-Mustapha; Mr. Mohammed Abacha and Mohammed Aminu with the murder of Mrs. Abiola before an Ikeja Chief Magistrate Court in November 1999. The prosecutor in the matter was Nuhu Ribadu who later became the pioneer chairman of the Economic and Financial Crimes Commission.
The case was taken over by the Lagos state ministry of justice in 2000 which terminated the matter at the Magistrate’s court and charged the defendants for the same offence at the Lagos High Court. In his oral testimony before the Honourable Justice Ade Alabi, the star prosecution witness, Sergeant Barnabas Jabila (a.k.a.Rogers) gave a vivid account and description of how he collected two uzi guns from Major Al-Mustapha. He also disclosed that Lateef Shofolahan gave information on the movements of Mrs. Abiola while Mr. Mohammed Abacha lent his Mercedes Benz car and allowed his driver, Mohammed Abdu (a.k.a Katako) to drive the killer gang to the scene of the crime. Although Mohammed Abacha did not deny the fact that he also gave $20,000 to two members of the killer squad to flee the country (to escape arrest and prosecution) the Supreme Court set him free in a split decision of 4-1.
In the majority decision of the court read by Alfa Belgore (as he then was), it was held that “The Appellant (Mohammed Abacha), in normal matter of course visited the first accused (Al Mustapha) not in course of any business. He saw Al Mustapha whispering to Jaabila (a.k.a Rogers) but not knowing what they discussed. He saw two guns taken out of a bag and given to the Jabila. Al Mustapha was Chief Security Officer and Jabila worked with him. Certainly he would not know what the mission was… Katako drove to the scene with Jabila and others where the unfortunate and gruesome murder was committed by Jabila, at least on his own confession of firing the shots at Mrs. Abiola.”. All the other four Justices on the panel of the apex court made similar profound findings based on the proof of evidence before the trial court. Even the Late Olufemi Ejiwunmi, who delivered a dissenting opinion had this to say: “There was evidence that the Appellant allowed his driver Mohammed Katako to drive Rogers; and that the said Rogers fired and killed Kudirat while being driven by Mohammed Katako. The appellant had seen Al-Mustapha, the first accused hand over machine guns to Rogers and his boys.” In dissociating himself from the decision of his learned brethren that the appellant had no case to answer, Justice Ejiwunmi described the verdict of the court as “a tyranny of majority”.
Before the judgment of the Supreme Court was delivered on July 11, 2002, Sergeant Rogers had appeared before the Justice Chukwudifu Oputa Panel on Human Rights Abuses which sat at the old National Assembly building at the Tafawa Balewa Square in Lagos. In the detailed evidence given by him sometimes in 2001, Sergeant Rogers confirmed that he fired the shot that snuffed life out of Mrs Kudirat Abiola as part of the atrocities perpetrated by the Strike Force on the orders of Major Al-Mustapha. He revealed that General Jeremiah Useni who was in the hall visited him and other members of the Strike Force in North Korea when they were training on how to kill the “enemies of Nigeria”. When asked by the Honourable Justice Oputa if he regretted his action he said he did and he proceeded to ask for forgiveness as he burst into tears. Curiously, Major Al-Mustapha and others who were indicted by Sergeant Rogers could not challenge the witness even though they were present at the proceedings.
The Delay Tactics by the Defendants
Based on the unassailable evidence led at the trial court and at the Oputa panel on the brutal assassination of Mrs. Abiola, the defendants decided to prolong the trial by resorting to various dilatory tactics. After the prosecution had led seven witnesses in evidence in the case the defendants applied for several adjournments. The trial within trial lasted for over a year. Many interlocutory appeals and applications for stay of proceedings pending the determination of appeals were also filed by the defendants. In dismissing one of the bail applications fought all the way to the Supreme Court, the defendants and their counsel were cautioned by the Justices to cooperate with the trial court to bring the murder case to a speedy end “in the overall interest of the administration of criminal justice in this country.”
When it became clear that the trial judge wanted to proceed with the case, the defendants suddenly turned round to accuse him of having taken a bribe of $10 million to convict them. They also petitioned the National Judicial Council (NJC) which decided to investigate the allegation. In the circumstance, the murder case was suspended sine die to enable the panel set up by the NJC to investigate the alleged misconduct of the judge. At the end of the investigation which lasted for over a year, the NJC committee found that the bribe allegation was a fluke as it could not be substantiated. The NJC gave the trial judge a clean bill of health and directed him to proceed with the trial. On resumption of hearing, the trial judge was requested by the defendants to withdraw from the case on the ground that he was likely to be biased having been falsely accused by them. At that juncture, Justice Alabi recused himself from the case and it was assigned to another judge. Through such diversionary tactics the case lasted 13 years in the docket and was handled by five judges at different times before it was eventually concluded by Justice Modupe Dada.
The Conviction and the Acquittal
In her considered judgment, Justice Dada rejected the retraction of the confessional statements of the two prosecution witnesses in line with many decisions of the appellate courts to the effect that a trial court can still convict on a retracted confessional statement as long as the judex is satisfied with the truth of the statement. Having watched the demeanour of the witnesses when they testified before her, the trial judge came to the conclusion that the prosecution had proved the case beyond reasonable doubt that both defendants were guilty of the murder of Mrs. Kudirat Abiola. Accordingly, her ladyship convicted and sentenced them to death by hanging. Completely dissatisfied with the verdict, both convicts challenged it at the Court of Appeal.
Upon a critical review of the case, the Court of Appeal found that the prosecution’s case was riddled with contradictions which ought to have been resolved in favour of the appellants. While condemning the shoddy investigation conducted by the police in the case, the Court discharged and acquitted the appellants. As if that was not enough their ladyships descended on the trial judge for “allowing herself to be caught in the web of the conflict”. But convinced that justice has not been done to the deceased the Court of Appeal concluded thus, ” Assuming the culprit is at large, there is nothing hidden under the sun that will not be exposed. The Law of the Lord is perfect. His judgments are true and righteous altogether–Psalm 19:7–9″.
With profound respect to the Court of Appeal, it does not appear that “the culprit is at large”. Hence the Court criticized the prosecution for fielding Sergeant Rogers “as a prosecution witness instead of being charged with murder” when he had initially confessed to the shooting of the deceased. In Abacha v the State (supra) the Supreme Court had equally noted, with dismay, that “the criminals have not been charged”. In particular, the court observed that “Sergeant Jabila (a.k.a Rogers) gave a graphic description of his involvement that if voluntary must amount to confession . He has not been charged with any offence”. While the Lagos state government has indicated its wish to challenge the judgment of the Appeal Court in the Al-Mustapha’s case at the Supreme Court, it is high time that Sergeant Rogers and the members of the killer gang were charged with conspiracy and murder of Mrs Abiola. After all, there is no statute of limitation with respect to the offence of murder.
Beyond The Acquittal of Major Al-Mustapha
Some members of the public who were not privy to the deliberate frustration of the trial by the defendants joined in the political campaign for their release while the trial was in progress. As impunity has become the order of the day, the Lagos state Attorney-General was under tremendous political pressure to file nolle prosequi with a view to aborting the trial. No doubt, the judges and the prosecutors should be blamed for allowing the defendants to exploit the loopholes in the criminal justice system to drag the trial for 13 years. Ironically, following their conviction by the Lagos high court, the defendants ensured that the appeal filed against the judgment of the trial court was heard and determined within 15 months in spite of the congestion of cases in the Lagos division of the Court of Appeal.
It is however pertinent to note that the Al-Mustapha trial has compelled the Lagos state government to amend the criminal procedure law. Thus, under the Lagos State Administration of Criminal Justice Law 2011, stay of proceedings pending appeal has been prohibited while the courts are precluded from entertaining preliminary objections filed by defendants until the prosecution has closed its case. Furthermore, confessional statements made by suspects are required to be video-recorded to avoid retraction by the defendants which often leads to trial within trial. Adjournments by parties designed to prolong criminal trials have also been banned. It can therefore be said that the case has put an end to the brazen manipulation of the criminal justice system by rich defendants and their lawyers.
However, in view of the incendiary statement credited to the factional leader of the Oodua People’s Congress, Frederick Faseun, to the effect that Major Al-Mustapha is a victim of injustice, he may wish to persuade his new political ally to sue the Lagos State Government for malicious prosecution. It is however doubtful whether Mr. Faseun has come across the comprehensive report of the Oputa Panel which specifically named Major Al-Mustapha as one of “perpetrators of gross violations of the rights of citizens under military rule”. Based on the unwarranted brutality meted out to many innocent persons by such torturers, the Panel recommended that “those of them not yet retired or relieved of their jobs should be so retired forthwith”. On the suspicious death of Chief M.K.O Abiola and other politically motivated killings which characterized the darkest chapter of our political history, the Panel recommended that the Federal Government should re-open such cases for “proper investigation”. But out of sheer class solidarity with the indicted characters, the Olusegun Obasanjo Administration could not muster the political will to implement the recommendations of the Oputa Panel.
Those who have expressed genuine concern over the discharge and acquittal of Major Al-Mustapha and Mr Shofolahan should be reminded of the fact that General Ishaya Bamaiyi, Mr James Dambaba, Mohammed Rabo Lawal and Mohammed Aminu who had been tried for the attempted murder of Chief Abraham Adesanya and Chief Alex Ibru had been freed due to the fact that the witnesses who had made confessional statements decided to make a u-turn. In the same vein, those who were charged with the assassinations of Pa Alfred Rewane, Chief Bola Ige, Harry Marshal, et al were left off the hook on the ground that the charges brought against them were not proved beyond reasonable doubt. With respect to the cases of Dele Giwa, Bagauda Kaltho, Jerry Agbeyegbe, Toyin Onagoruwa, Aminasoari Dikibo and several others, the police did not even charge any suspect to court. Since the criminal justice system of the neo-colonial state has virtually collapsed serious cases involving rich criminal suspects are usually lost in court due to either shoddy police investigation or prosecutorial irresponsibility.
But suffice it to say that under the criminal justice system, only the poor are successfully prosecuted for murder and sundry offences because they lack the resources to manipulate the criminal justice system. Ours has become a banana republic that is managed by a ruling class which cannot even protect the lives of its own members. As for the rest of the society it has become a case of everyone for himself and God for us all. Hence, extra-judicial killing of unarmed citizens by security personnel and unofficial killer gangs is on the ascendancy. Instead of resigning to fate in the circumstance, concerned individuals and organizations should be prepared to struggle for the establishment of a new society where impunity will be consigned to the dustbin of history. And the struggle should begin with a call on the Federal Government to disarm and disband the Strike Force and other killer groups set up by the State and well-connected politicians for the violent elimination of their political opponents.