The State vs. Al-Mustapha and others

Guardian Editorial Wednesday, 31 July 2013

THE acquittal the other day, of Major Hamza Al-Mustapha and the emotions now trailing the judgement, have again shown that the scars are not only still deep, they have been dug further open.

Hamza Al Mustapha.Credit:Vanguard Newspaper.

The accused persons are free, the victims are dead, and their families are nursing the scars. With the killers still unknown, as this judgment effectively says, Nigeria still bleeds from the assault of the Sani Abacha years.

In place of a closure on those bestial years, the nation now deals with an open and nagging reminder of a mindless torture. And for many, the nightmare not only continues, the nation is trapped in bondage to a ghastly memory.

That judgment of the Court of Appeal, Lagos which upturned the death sentence handed down by a Lagos High Court to Hamza Al-Mustapha, former Chief Security Officer to the late Gen. Sani Abacha and Lateef Shofolahan, former aide to the late Chief Moshood Abiola, over the murder of Kudirat Abiola, has once again, put the judiciary in an uncomfortable controversy. Not only did the court discharge and acquit Al-Mustapha in the most controversial manner, it also descended heavily on the High Court Judge for being “fool-hardy and unreasonable” “to have so swiftly convicted the appellants when it was very evident that the prosecution had a bad case.”

Ironically, many Nigerians believe that if any judgment fits that description, it is actually that of the Appeal Court and not the Lagos High Court’s. The lower court’s verdict appears more reasonable and convincing than that of the Appeal Court. In other words, what was evident was that the prosecution did not have a bad case.

There is a lot to take away from the judgment. In the first instance it brings to the fore the too many ills besetting the Nigerian criminal justice system which makes it deserving of a complete overhaul. Most bizarre is the inordinate delay which cases suffer in court. An average case takes three or more years to be decided against the provision of the constitution that “whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.” It is even worse and perhaps orchestrated in criminal trials involving high profile persons as witnessed in Al-Mustapha’s case which took 14 years to decide, and in the trials of corrupt public officers and former governors some of who have been in court since 2003, without an end in sight. Nigerians are bewildered as to whether there would ever be an end to the trials. High hopes enkindled by such arraignments have become forlorn by the indeterminable delay. Any criminal justice system that drags for so long makes itself vulnerable to all sorts of abuse and external or extraneous manipulation potent enough to asphyxiate or pollute justice.

Secondly, the judgment raises the question of whether Nigerian courts are actually courts of justice as they are called, or mere courts of law. For a court of justice according to the law, sentiments have no place at all. It is a popular view in legal circles that sentiment or a semblance of it is never allowed to filter into justice. And this is why the Court of Appeal came across in this case as no more than a court of law determined to espouse the principles of law to arrive at a destination. Its consideration of the law was to set the “captives free” whether or not there was any justification for this. It capitulated pathetically to the strong wind of sentiment. The court was not known to fall so cheaply and naively for retraction of confessional statement in the way it did in this case. In all of its previous judgments, its consistent and seemingly immutable position was that retraction of confessional statement does not per se render the statement unreliable and that conviction can be based on such statement provided the court is satisfied of its truth. What operates in the mind of the court in assessing the quality of a confessional statement, whether retracted or not, are: whether there is anything outside the confession which shows that it may be true; whether it is corroborated; are the relevant statements of fact made in it true as far as can be tested? Was the accused person one who had the opportunity to commit the offence? Is the confession possible and is it consistent with other facts which have been ascertained?

Against this background, can it be honestly contended that there was not enough independent corroborative evidence of the facts contained in the confessional statement of prosecution witness Sergeant Barnabas Jabila Mshela and Mohammed Abdul? Why did the justices find it more convenient to believe the retraction more than the confession? Was there no spate of killings in those dark days of Abacha regime which claimed the lives of Alfred Rewane, Rear Admiral Omotehinwa, Dr. Omotshola, Tosin Onagoruwa and others, and which should readily make the confession more believable than the retraction? Was there no attempt on the lives of Alex Uruemu Ibru, Chief Abraham Adesanya, and others? Was Kudirat Abiola not murdered? Did the graphic illustration of star witness, Barnabas Jabila Mshela, alias Sergeant Rogers, on how Kudirat was murdered not exactly how she was killed? Were the circumstances and events surrounding the murder of Kudirat Abiola not exactly as painted by Rogers? Why did it take so long to retract the confession? Is it not more probable that they were induced to retract the statement than to make the confessional statement bearing in mind when the statement was made and when it was retracted? It is not out of place to assert without fear of contradiction that there was a lot outside the confession of Rogers, which showed that his confession might be true, that Rogers as a member of the strike force under Al-Mustapha’s control had the opportunity to commit the offence and that what he said about the murder of Kudirat was possible. It is surprising and an irony of great significance that the Court of Appeal did not see all of these, which other Nigerians saw, and instead, chose to reprimand the lower court judge who was clear-visioned enough to see them.

The truth is that it has remained part of the nation’s criminal jurisprudence up till today that conviction can be predicated solely on a confessional statement. To deprecate the judgment of the lower court for standing on the confessional statement of Rogers reinforces the argument that the court was either labouring for excuses, or would not be bothered into making deeper inquiry on a crime so gruesome. The former appears more apt in the light of the previous decisions of the court in similar matters where it took positions completely at variance with the ones now taken in Al-Mustapha’s case.

In Usung v. State, the same Court of Appeal justified the reliance of the lower court on a retracted confessional statement and the conviction based thereon. Why then did the same court turn around to deprecate what it applauded in an earlier judgment? Basically therefore, it is safe to conclude that the Court of Appeal by discharging and acquitting Al-Mustapha and Shofolahan for the reasons it did, took its stand on a banana skin. It is unlikely to survive the scrutiny of the Supreme Court. What this suggests is that the judgment should be appealed for posterity sake.

Although the Court of Appeal accused the trial judge of impropriety, they would appear to be more guilty of all the allegations and travesties levelled against her. While the Lagos State government prosecution team can be accused of shoddiness in some respect and should be knocked for this, the appeal court went too far when it described the failure of the prosecution to tender “the bullet extracted from the forehead of the deceased” as fatal to its case. Whereas it was the same court which said in the cases of Ochiba v. State and Kabaka v. State that where the cause of death is clear, production of murder weapon, though desirable, is no longer necessary before the court could convict for murder. And so, it was in Bayewu v. State, where the murderer of a popular musician, Ayinla Omowura, was convicted, as indeed in several other cases, without the tendering of the items used in the assassination. Or was the court insinuating that it was not clear that Kudirat died of gunshot wounds?

In all, what the judgment has done is to authenticate impunity. It reinforces the conviction that here in Nigeria, only the small man pays for his crimes. Above all, it means that all those behind the dastardly acts and litany of woes freely dispensed by the Abacha regime have finally got away, literally with murder, in a manner that calls to question the essence of government or its readiness or capacity to discharge its basic responsibility of protecting lives and property, and enforcing law and order. The greatest tragedy is that this judgment has, once again, defeated the expectation of Nigerians, and shunned the invitation to a patriotic partnership to save Nigeria. The accused may have been freed by the court, but Nigeria remains shackled to the memory of a traumatising era. With justice now put off over these murders and the killers still unfound, the cleansing Nigeria needs remains elusive. And the blood of the victims, still raw on the pavement of the hearts of Nigerians, cry out ever more loudly for justice.


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