The Military Court Martial had on 16 September, 2014, sentenced to death 12 of the 18 soldiers charged for mutiny on 13 and 14 May, at Maimalari Cantonment.
According to Vanguard report, Agbakoba, on behalf of the 12 condemned soldiers, in Suit No. FHC/ABJ/CS/708/2014, is challenging the decision of the Court Martial on the ground that its composition was unconstitutional and contrary to Section 36(1) of the Constitution, which guarantees a fair trial to accused persons by a tribunal constituted in such manner as to secure its independence and impartiality.
It was gathered that Agbakoba stated, in his affidavit in support of the Originating Motion, that all the members of the Court Martial were Army Officers appointed by the 2nd Defendant, Brigadier-General D. T. Ndiomu, Commander, Army Headquarters Garrison, Mogadishu Cantonment, Asokoro Abuja.
The affidavit also stated that the prosecutors, Lieutenant-Colonel A.A. Audu and Lieutenant-Colonel Ukpe Ukpe, are Army Officers also appointed by the 2nd respondent.
The independence and impartiality of the Court Martial was not secured in the trial of the soldiers, Dr. Agbakoba asserted.
"This is because all those who participated in the events related to the Court Martial are Army officers. They are the investigators, prosecutors, President, Judge Advocate, Waiting Member and other members of the Court Martial," he noted.
Though the suit is yet to be assigned to a judge, it was filed under the Fundamental Rights (Enforcement Procedure) Rules 2009 seeking four reliefs, including:
– a declaration that the convening and composition of Army General Court Martial, which convicted and sentenced 12 soldiers to death by firing squad for various offences on September 16, is contrary to Section 36(1) of the Constitution of the Nigeria, 1999;
– a declaration that the decision of the Nigerian Army General Court Martial, presided over by Brigadier-General C. C. Okonkwo, delivered at the Army Headquarters in Abuja on September 16, whereby 12 soldiers were sentenced to death by firing squad, violated the right to fair hearing of the convicted soldiers;
– a declaration that Section 133(3)(4) & (5) of the Armed Forces Act, dealing with the convening authority of Court Martial, is inconsistent with Section 36(1) of the Constitution and therefore null and void; and an ordersetting aside the decision of the Court Martial made on September 16.
Meanwhile, it would be recalled that Lagos lawyer, Femi Falana (SAN) had three weeks ago called on the Nigerian military authority not to confirm the death sentence passed on 12 soldiers.
Falana advised that the death sentence instead should be commuted to imprisonment in the interest of Justice, The Nation reports.
He also urged the convicted soldiers that should the Army council confirm the death sentence, they should take the case to the Court of Appeal.
Also, a former senate president, Ameh Ebute, filed an appeal to stop the execution of six of the 12 soldiers sentenced to death.
Ebute, who is also a renowned lawyer, filed a motion for a stay of execution of the condemned soldiers at the Appeal Court in Abuja.
The ex-senate president explained that he filed the appeal in regards to Sections 183 and 184 of the Armed forces Act cap A of the Laws of the Federation, which offers the condemned soldiers up to 10 days to appeal their conviction.
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