By
Femi Falana
 |
|
Major
Al-Mustapha
|
Introduction
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, Mr. Dele Giwa by a parcel bomb in Lagos on October 19, 1986
was covered up by the junta. The gallant attempts by the late Chief 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 Mrs. 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, Mr 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 Mr. 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 Alhaji Lateef Shofolahan gave information
on the movements of Alhaja Kudirat Abiola while Mr Mohammed Abacha lent his mercedes
benz car and allowed his driver, Mr Mohammed Abdu (a.k.a Katako) to
drive the killer gang to the scene of the crime. Although Mr 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 JSC (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 JSC
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
After the trial had lasted for over a
decade due to ceaseless adjournments mostly at the instance of the defendants
Justice Dada rejected all fresh strategies designed to frustrate the trial.
Curiously, the witness protection arrangement put in place by the federal
government was discontinued. Not unexpectedly, some of the witnesses who had
earlier on testified refused to show up in court.
The star witness, Sergeant Rogers
testified but decided to contradict himself by alleging undue influence on the
part of the prosecution. In his own defence, Major Al-Mustapha alleged
that the trial was politically motivated by two former heads of state. The late
Pa Abraham Adesanya (who narrowly escaped Sergeant Rogers' bullet) and Chief
Bola Ige (who was gruesomely assassinated by unknown gunmen in December 2001)
were alleged to have collected millions of pounds, dollars and naira from
General Abdulsalami Abubakar to betray the June 12 mandate. But when the video
recording of the much touted bribe was shown during the trial it turned out to
be a ruse deliberately designed to divert the course of justice.
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 Alhaja 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 criticised 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, Dr
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 Dr. 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 characterised 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.
CONCLUSION
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 organisations 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.
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