Military court lacks power to try soldiers who allegedly killed policemen and freed Wadume - Femi Falana tells AGF Malami

Human rights lawyer, Mr Femi Falana (SAN), has dismissed the claim made by Attorney General of the Federation, Mr. Abubakar Malami (SAN), that the 10 Nigerian soldiers, who allegedly killed three policemen to free a kidnap kingpin in Taraba State last year, must first be court martialed before they could be prosecuted in a civil court.

According to Falana, the military court lacked jurisdiction to entertain the case of terrorism, which the 10 soldiers are being accused of committing against the policemen, a case which brought widespread criticism against the Nigerian Army.

On August 6, 2019, 10 soldiers led by Captain Tijjani Balarabe allegedly killed policemen, who were conveying the kidnap kingpin, Bala Hamisu, alias Wadume, from Ibi, Taraba State, to Abuja .

Three policemen and two civilians were killed in the process as Wadume was set free.

The Inspector-General of Police, Adamu Mohammed, charged Wadume and others, including the 10 soldiers in February 2020, with various offences, including terrorism, kidnap, etc.

AGF Malami was widely criticized after he removed the names of the soldiers as defendants after taking over the case from the police in June, even though he denied he was trying to exonerate the soldiers.

Malami on July 1, said the soldiers “are to go through the in-house processes” by either facing “the court martial, which is a special court established by law” for soldiers or “in the alternative for the military after consummation of the in-house processes, should consider handing them over for trial.”

Falana has now rejected Malami’s claim. Speaking to reporters, he said that by virtue of Section 287(3) of the Nigerian Constitution, Malami was duty-bound to enforce the “valid and subsisting order” issued by the Federal High Court in Abuja on March 16, 2020 compelling the Chief of Army Staff, Tukur Buratai, to produce the 10 indicted soldiers for trial.

Falana continued; “The offence of terrorism allegedly committed by the indicted soldiers is not provided for in the Armed Forces Act.”

He added, “For the avoidance of doubt, Section 32 of the Terrorism Prevention Act 2011 as amended by the Terrorism Prevention Amendment Act 2013 provides that ‘The Federal High Court located in any part of Nigeria, regardless of the location where the offence is committed, shall have jurisdiction to (a) try offences under this Act or any other related enactment; (b) hear and determine proceedings arising under this Act’.”

Falana said that the indicted soldiers were properly charged with terrorism along with other suspects at the Federal High Court, “the only competent court in the land.”

He stated, “Even though the Attorney-General withdrew the charges against the indicted soldiers, the order that they be produced in court for arraignment has not been vacated or quashed either by the trial court or the Court of Appeal.

“Therefore, the Attorney-General is duty-bound to ensure full and unconditional compliance with the valid and subsisting order of the Federal High Court in accordance with Section 287 (3) of the Constitution.”