Hamza al-Mustapha
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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, by 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, accusing 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 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 1993-1998.
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 Porbeni 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, General Sani 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.
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 for the same offence at
the Lagos High Court.
In his oral testimony before 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 Hamza 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 Abdul (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.
In the majority decision of the court
read by Alfa Belgore JSC (as he then was) it was held that, “The
Appellant (Mohammed Abacha), in normal matter of course visited the
first accused (al-Mustapha) not in course of any business.
He saw al-Mustapha whispering to Jabila
(a.k.a Rogers) but not knowing what they discussed. He saw two guns
taken out of a bag and given to the Jabila. Al-Mustapha was Chief
Security Officer and Jabila worked with him. Certainly he would not know
what the mission was… Katako drove to the scene with Jabila and others
where the unfortunate and gruesome murder was committed by Jabila, at
least on his own confession of firing the shots at Mrs. Abiola.”
All the other four Justices on the panel
of the apex court made similar profound findings based on the proof of
evidence before the trial court. Even the Late Olufemi Ejiwunmi JSC who
delivered a dissenting opinion had this to say: “There was evidence
that the appellant allowed his driver Mohammed Katako to drive Rogers;
and that the said Rogers fired and killed Kudirat while being driven by
Mohammed Katako. The appellant had seen al-Mustapha, the first accused,
hand over machine guns to Rogers and his boys.”
In dissociating himself from the
decision of his learned brethren that the appellant had no case to
answer Justice Ejiwunmi described the verdict of the court as “a
tyranny of majority”.
Before the judgment of the Supreme Court
was delivered on July 11, 2002 Sgt. 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
sometimes in 2001, Sgt Rogers confirmed that he fired the shot that
snuffed life out of Mrs Kudirat Abiola as part of the atrocities
perpetrated by the Strike Force on the orders of Major Al-Mustapha.
He revealed that Gen. 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 Chukwudifu 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 Sgt Rogers could not challenge the witness
even though they were present at the proceedings.
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 $10m to convict them.
They also petitioned the National Judicial Council 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 ground that he was likely to be biased
having been falsely accused by them. At that juncture, Justice Alabi
recused 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. .
Conviction and 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 on testified 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, al-Mustapha
alleged that the trial was politically motivated by two former heads of
state.
The late Pa Abraham Adesanya (who
narrowly escaped 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 Gen. 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 the acquittal of Major al-Mustapha
No doubt, the judges and the prosecutors
should be blamed for alllowing 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 vÃdeo recorded to avoid retraction
by the defendants 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
In view of the incendiary statement
credited to the factional leader of the Oodua Peoples Congress, Dr.
Fredrick Fasheun to the effect that Major al-Mustapha is a victim of
injustice, he may wish to persuade his new political ally to sue the
Lagos State Government for malicious prosecution.
It is however doubtful whether Dr.
Fasheun has come across the comprehensive report of the Oputa Panel
which specifically named Major al-Mustapha as one of “perpetrators of
gross violations of the rights of citizens under military rule”. Based
on the unwarranted brutality meted out to many innocent persons by such
torturers, the Panel recommended that “those of them not yet retired or
relieved of their jobs should be so retired forthwith”. On the
suspicious death of Chief M.K.O Abiola and other politically motivated
killings which characterised the darkest chapter of our political
history the Panel recommended that the Federal Government should
re-open such cases for “proper investigation”. But out of sheer class
solidarity with the indicted characters the Olusegun Obasanjo
Administration could not muster the political will to implement the
recommendations of the Oputa Panel.
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.
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 ground 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 criminal justice 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 is 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.
Falana, a Senior Advocate of Nigeria, wrote from Lagos
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