20/01/2016

$2.1b arms scandal: Do mutinous soldiers deserve pardon?

$2.1b arms scandal: Do mutinous soldiers deserve pardon?
Can a soldier decline to fight if not adequately kitted to do so? Sixty-six soldiers did and dared the consequence. They were convicted for mutiny by a court martial. A panel of inquiry says that the funds meant to buy weapons for them were mismanaged. Should their convictions still stand? 

IS last year’s conviction of 66 soldiers for mutiny by a military court justifiable?
The above question is germane in the light of ongoing revelations on the alleged diversion of the $2.1 billion voted to buy equipment for the armed forces for the fight against the Boko Haram insurgency through the Office of National Security Adviser (ONSA), under former NSA Col. Sambo Dasuki.
Seventy-one soldiers were originally arraigned by the army for criminal conspiracy, conspiracy to commit mutiny, mutiny, attempt to commit an offence (murder), disobedience to particular orders, insubordinate behaviour and false accusation, among others.
They were tried, discharged on some of the charges but found guilty and convicted on others, which included mutiny.
Sixty-six of the 71 were found guilty on some of the charges and sentenced to death, while five were discharged and acquitted and one was given 28-day imprisonment with hard labour.
The mutiny was sparked by the death in a Boko Haram ambush of dozens of their colleagues when they were ordered against their will, to drive through a dangerous road at night.
Frontline troops serving under former President Goodluck Jonathan frequently complained that the militants were better equipped. The soldiers said they lacked the proper equipment, including bullets, to fight the insurgents.
Several of the soldiers were reported as saying that they were sent into battle with just 30 bullets each and without food rations.
Frustrated by their condition, some of the soldiers allegedly shot at their commander’s vehicle. They were tried by a military court which found them guilty of mutiny. They were sentenced to death.
Army spokesman Col Sani Usman told reporters that the military reviewed the cases and those of other soldiers accused of desertion and other charges, including the 579 put on secret trial in May, 2015.
He explained that the review was necessitated by a series of petitions to the Chief of Army Staff (COAS), Lt- Gen. Tukur Buratai, who ordered a legal review of the cases.
Usman said: “The directive was carried out to examine the merits of each case. It was on the basis of the review and recommendations that the Chief of Army Staff commuted the death sentences of the 66 soldiers to 10-year jail terms.”
The Arms Procurement Panel report

However, the convicts’ case for pardon appeared to be strengthened by the interim report of an Arms Procurement Panel set up by President Muhammadu Buhari to probe the military’s procurement process in the last administration.
After receiving the report in November last year, the President alleged that under the immediate past administration, troops were denied weapons to fight Boko Haram and that thousands of lives were lost because of rampant fraud in the procurement process.
Buhari described the findings of the committee’s interim report as “extremely worrisome” given the desperate need for troops to have the right equipment to tackle Boko Haram.
“Had the funds siphoned to these non-performing companies been properly used for the purpose they were meant, thousands of needless deaths would have been avoided,” he added.
According to a statement from the Presidency, a princely $5.3 billion was provided to the ONSA, defence headquarters and the headquarters of the army, navy and air force.
“It was observed that in spite of this huge financial intervention, very little was expended to support defence procurement,” it added.
When can a soldier
decline to fight?

In the military, every soldier is trained to “obey the last order.” But, are there limits to this obedience? For instance, if the military fails to provide a soldier with the equipment he needs, can that soldier refuse an order to go to war? Not according to Section 52 of the Armed Forces Act Cap A20 LFN 2004.
The Act in Section 52(3) defines mutiny as a combination between two or more persons subject to service law under this Act or between persons, two at least of whom are subject to service law under this Act.
  • To overthrow or resist lawful authority in the federation or in any arm or service of the Armed Forces or in any force, co-operating with the Armed Forces or in any part of those forces;
  • To disobey the authority as is mentioned in paragraph (a) of this subsection in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connection with operations against the enemy;
  • To impede the performance of any duty or service in the federation or in any arm or service of the Armed Forces or in any force co-operating with the Armed Forces or in any part of those forces.
Section 529(1) of the Act stipulates a punishment of death for any soldier found guilty of mutiny.
A retired military intelligence officer, Col. Olanipekun Majoyeogbe, explained why the Act gives soldiers no freedom to question or disobey a lawful order.
He said: “I am not aware of any situation or circumstance where a soldier can lawfully refuse an order to fight. That is because generally soldiers do not have the privilege of accepting orders given to them.
“When you’re given an order to do something, whether you’re an officer or a soldier, the privilege of thinking about it to see whether it is legitimate or not does not exist, and that is why you have this very common expression that people use outside the army; ‘Obey first and then complain’.
“I remember that when Gen S.V. L Malu, appeared before the Oputa Panel, and this issue came up on live television, he said that if a man is standing some distance from him and he can see it clearly that it is his father, and he is commanded to shoot, he will fire first before turning round to say, ‘sir, that is my father.’”
According to Majoyeogbe, though soldiers’ job looks very nice and colourful on the surface, it is a very difficult profession.
He said: “When you get into combat, one minute is a very long time. So, if those who are ordered to do things have the privilege of thinking about the order or expressing their opinion, that army can never win any war.
“Also, if you give an order to a soldier and he gives an excuse or he explains why he cannot carry out the order, what do you think the next soldier will do? He too will find an excuse not to obey.”
Majoyeogbe explained that there is an assumption that the officer giving an order to a soldier knows what he’s doing.
He said: “Of course, that is not always true, but that is the assumption. The person in the position to give an order knows what he’s doing and once he gives the opportunity to anyone to explain why he disobeyed, that squad has failed.
“One minute in combat is a very long time, things happen so rapidly that you cannot afford to waste time debating the order. It is also assumed that the person giving the order has more information.
“That is one reason soldiers are trained to obey without question. If you’re given an order during battle and the enemy is firing at you, you can’t stand there debating whether to go or not, you will be overrun.
“Also, you cannot tell the organisation into which you have been recruited, how to do the job. I think it would be very difficult and almost impossible if people are allowed to accept or reject the orders they have been given. The military cannot work that way. You cannot win any war that way.”
Were the soldiers
‘merely cowardly’?

During his Chatham House lecture in London last February, Dasuki, suggested that some soldiers who refused to fight, may have been merely afraid.
He said: “We have a few cowards. That is why we have a lot of courts martial going on. If somebody does not behave in a manner that is befitting of his profession, he is treated by what is proscribed by law. That is what is going on.”
However, Dasuki’s statement was not consistent with the documented antecedents of Nigerian soldiers.
In an interview last year, Mr. Andrew Pocock, the former United Kingdom (UK) High Commissioner to Nigeria, said: “The Nigerian Army Battalions and Brigades are part of the 3rd Division based in Maiduguri, combatants. What we’ve found, and it is worth saying this because the Nigerian Army has had a difficult time of late, and senior officers have often accused soldiers of being cowards and there have been court martial and so forth.
“The British regiment that was training two companies of Nigerian soldiers recently, who then went on to do extremely well in Adamawa State and push Boko Haram out of parts of and around Mubi; the British regiment that trained them said they preferred working with Nigerian soldiers to working with soldiers they’ve trained in other countries, because they found the Nigerian soldier to be really good material; loyal, hardy and prepared to take risks.
“But, he (the Nigerian soldier) didn’t have, not just some basic equipment, but the training to give him confidence in two things. First, that he had a good chance of staying alive, and second, that he had a good chance of winning. You give a soldier those two things and you’ve created a much more effective unit.”
Lawyers seek
presidential pardon

Some lawyers and rights activists have argued that soldiers have a right to self-preservation in the face of impending death.
Human rights lawyer, Femi Falana, for instance, is leading a campaign urging President Muhammadu Buhari for presidential pardon for all convicted members of the armed forces.
In a petition to President Buhari, Falana, who defended the soldiers in court, said: “The soldiers whose cases were handled by us anchored their defence on 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 and that he shall not be penalised for having made a complaint.
“Since the soldiers who have been reinstated and the scores of others who were convicted by the courts-martial were alleged to have committed the same ‘offence’ Gen. Buratai ought to have treated them in like manner.
“In other words, all the convicted soldiers should equally have been pardoned and reinstated without any conditions.
“More so, that the Arms Procurement Panel instituted by Your Excellency has confirmed that the sum of $2.1 billion and N643 billion set aside for the purchase of equipment for counter-insurgency operations was allegedly diverted by the immediate past National Security Adviser, Col. Sambo Dasuki and his several accomplices.
“It has been further revealed by the panel that another sum of 42 billion and N69 billion for procurement of arms for the Nigeria Air Force was equally diverted by a coterie of serving and retired military officers and their civilian accomplices.
“In urging Your Excellency to pardon the convicted soldiers we are not unaware of the belief in military circles that a protest by members of the armed forces constitutes mutiny.”
“As the belief does not represent the current state of the law we are compelled to draw Your Excellency’s attention to the case of Cpl Oladele & 22 Ors v Nigerian Army (2003) 36 WRN 48,” the Senior Advocate of Nigeria (SAN said.
Falna said that in that case, the conviction and the sentences passed on the 23 soldiers were set aside by the Court of Appeal.
Another SAN, Chief Felix Fagbohungbe shared the same sentiment with the lawyer-activist.
Fagbohungbe said: “Those who are responsible for not giving them the appropriate weapons to fight should be the ones to blame.
“It was good of the soldiers; otherwise Nigeria would have wasted a generation of soldiers if they did not refuse that order. They would have wasted their lives. Their running away was a safety mechanism because at that time they could not have fought, they were like harmless chickens.
“If they had confronted those people with inferior weapons, they would have been defeated. So, it was good that they ran away and it was good that we did not lose all of them.
Fagbohungbe urged the Feeral Government to forgive and reinstate them.
His words: “So, they should pardon them and allow them to return to their jobs. They should also be equipped with good weaponry to go and fight. It wasn’t their fault at all.”
A former Chairman, Nigerian Bar Association (NBA) Ikeja chapter, Monday Ubani, echoed the SAN’s position. He asked for amnesty for the convicts.
He said: “It is becoming obvious from the reports we are getting from the military establishment that soldiers were really sent to war fronts  to fight without weapons, and where they were given weapons,  the weapons were outdated.
“The reports of corruption, lack of purchase of arms and ammunitions and diversion of funds meant for the procurement of arms into private pockets make it imperative to clamour at this juncture for legal reprieve for the convicted soldiers.
“My humble request here which I have canvassed in several other fora before this can of worms was blown open is that President Muhammadu Buhari should as a matter of urgency, grant amnesty to the convicted soldiers due to the fact that they were placed under circumstances that was beyond their control in the fight against the insurgency.
“My conclusion, and I say it advisedly, is that these soldiers were sent on a suicidal mission and not to fight a war, therefore they should not be tried for mutiny.
“The country was unfair to them if the state failed to provide basic equipment to prosecute the war and turns around to send them to jail for mutiny.”
Lawyer-activist Jiti Ogunye argued that the soldiers should be totally pardoned and rehabilitated because they were being asked to commit suicide.
Ogunye said: “And their abandonment of duties was meant to call attention to the lack of weaponry which we didn’t know about then.
“So, these soldiers are not just entitled to be released but are also entitled to national awards for having the courage, in spite of their regimentation and in spite of the discipline to which the men of the armed forces are subjected; and for having the carriage to come out and say ‘we won’t go to have until we have weapons.’
“They deserve awards because they knew the consequences; they knew that in a war situation, they could be arraigned and be summarily shot. But, they dared to talk, to call our collective attention to the aberration that was going on then, when people were being made to fight a war without the weapons of war.”
He condemned a situation where Nigerian soldiers are sent to war without ammunition and expected to sacrifice themselves for the country, “so that they would be given heroes’ burial and every January  15 they would be remembered as fallen heroes.”
“So, these soldiers are not the guilty ones. The guilty ones are their superiors who stole the money that was meant to purchase armaments and who put them in a position where they couldn’t do any fighting.”
Emphasizing the gravity of mutiny as an offence, Ogunye said mutiny include “disobedience to a lawfully given order that includes a number of soldiers in a way that the authority of the commanding officer or of the military hierarchy is challenged.”
“The military runs on discipline, iron clad principle . However, in this situation, there were extenuating and ameliorating circumstances.
“A soldier is not expected to be mutinous and if a soldier is given the last order, he is expected to obey that order. But, to go and fight a war and there is no ammunition to fight, a soldier can complain to say that ‘you have only given me the last order to fight a war, you have not given me the last order to go and commit suicide.’
“There is a difference between the two. If this is regarded as a mutinous act, and now we have a full explanation for those situations, there are sufficient extenuating and sufficient ameliorating circumstances  for the leadership of the country to totally grant them a full pardon and totally integrate them back into the military so that they can do the fight they signed up to do on behalf of all us.”
Lagos-based lawyer Richard Komolafe said it would be a miscarriage of justice to punish the soldiers:
Komolafe said: “It will be a great injustice to the so-called convicted soldiers to serve a punishment that is practically not of their making.
“Falana, in defending those soldiers, was able to show the Court Martial that those officers refused to fight because they had obsolete equipment. The officers should be pardoned because it has been shown that the offences they were convicted for was not their fault.”

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