Femi Falana, a senior advocate of Nigeria (SAN), says a
general court-martial does not have the competence to try the soldiers who
allegedly freed Bala Hamisu, suspected kidnap kingpin better known as Wadume.
In August, some soldiers attached to the army’s 93 battalion
Ibbi-Takum road, Taraba, had attacked
policemen who had come from Abuja to arrest Wadume.
Three policemen and two civilians were killed in the process
as Wadume was set free.
The soldiers led by Tijjani Balarabe, a captain,
But Abubakar Malami, attorney-general of the federation
(AGF), whose office took over the case said the
soldiers had not been taken to a civil court because they were still
being court-martialed in line with the rules of the military.
A court-martial is a military court where members of the
armed forces are tried using military laws.
Reacting to Malami’s claim on Sunday, Falana said the
soldiers were charged with terrorism and only the federal high court is
empowered by the law to handle such matter.
“With respect, the offence of terrorism allegedly committed
by the indicted soldiers are not provided for in the Armed Forces Act. To that
extent, a general court-martial or special court-martial lacks the
jurisdictional competence to try the offence of terrorism committed against
police personnel and other members of the public by soldiers who are subject to
service law,” he said.
“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.’
“Hence, the indicted soldiers were properly charged with
terrorism along with other suspects in the only competent court in the land.
However, since the military authorities did not release the suspects to the
police for the purpose of arraigning them in court the learned trial judge, the
Honourable Justice Binta Nyako rightly ordered the chief of army staff to
produce them to answer to the heinous charge of terrorism and allied offences.
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.”
He added that the AGF 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.
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