Femi Falana gives a curious account of how Major Hamza
Al-Mustapha exploited the loopholes in the criminal justice system to
secure freedom
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, through 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, 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 to 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, Abacha.
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 to 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, 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 (EFCC).
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 with 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.
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 sometime in 2001, Sergeant Rogers confirmed that he fired the shot that snuffed life out of Mrs. 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.”
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 sometime in 2001, Sergeant Rogers confirmed that he fired the shot that snuffed life out of Mrs. 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 grounds that he was likely
to be biased having been falsely accused by them. At that juncture,
Justice Alabi recluse 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 testified, however, 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.
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 testified, however, 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 Al-Mustapha’s Acquittal
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.
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 defendands 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.
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.
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 grounds 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 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.
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 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 are 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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