|Olisa Agbakoba, SAN|
The manner, procedure and process by which these condemned soldiers were sentenced to death is contrary to the Nigerian Constitution. The reason is because the Army was investigator, prosecutor and judge all rolled into one. This is contrary to the rules of natural justice as consecrated at Section 36 of the Nigerian Constitution.
The constitution and composition of the Court Martial are fundamentally flawed as they violate the fundamental rights of the convicted soldiers to fair hearing and trial as enshrined in the Constitution.
The commander, Brig-Gen B.T. Ndiomu, who set up the Court Martial, is a party interested. He appointed all 9 members of the Court Martial, namely, the President, Brig-Gen C.C. Okonkwo, two waiting members, a judge advocate and two prosecuting officers and the investigators. The Judge advocate who is to assist the Court Martial on legal points is far junior to the President of the Court Martial. By military tradition of obedience to superior orders, it is difficult for the Judge advocate to give unwanted advice to the President of the Court Martial, who is a far superior officer.
The Supreme Court of Nigeria has decided in Gani Fawehinmi v LPDC [Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) NWLR (Pt. 7) 300] ... "that whenever a procedure allows admixture of the investigator, prosecutor and judge to be appointed or controlled by one authority, it is impossible for the accused to obtain fair trial."
It is my opinion that the principles laid down by the Supreme Court of Nigeria in Gani's case are fully applicable to the decision of the Court Martial.