Date Published: 09/20/10

Persecution of Major Hamza Al-Mustapha and the Violation of His Right to Trial within Reasonable Time by the Nigerian State. By Jirinwayo Jude Odinkonigbo

Regardless that it has taken almost TWELVE (12) years since the commencement of criminal charges preferred against Major Hamza Al-Mustapha & 3 others in Lagos, no one in this country knows when the matter will be finally dispensed with by the trial court. In this state of affair, Al-Mustapha and his co-accused persons have been under detention and strict monitoring by the prison authorities. In most instances, the accused persons have been denied access to their lawyers, families, and friends throughout this period of incarceration.

This paper indicts the Nigerian state for an obvious persecution of the accused persons: which has resulted in the flagrant violation of their rights to trial within reasonable time. In establishing this thesis, there is need to briefly look into certain issues, such as: the position of the law regarding trial within reasonable time and its violation in this instance; the political nature of Al-Mustapha’s trial; and obvious complicity among the Nigerian political elites (especially those of the Northern origin) to get their Shakespearean Shylock’s pound of flesh from Al-Mustapha. In particular, it is argued that Northern politicians are to be blamed for the continued detention of Major Hamza Al-Mustapah because it appears they are happy seeing the young man languish in jail. This sadistic stance of the Northern political elites over the fate of Al-Mustapha is attributed to Mustapha’s alleged political sins while he was Chief Security Officer to the Late Head of State, General Sani Abacha. Finally, it is argued that the use of machineries of state (including our courts that ought to be independent in the first place) to perpetuate injustice against a Nigerian citizen is a dangerous precedent because such practice is like a whirlwind that blows no one any good. For as long as “drivers” and “controllers” of instruments of governance and violence will continue to change, the occupiers for the positions of the “oppressed” and “oppressors” will continue to change as well. Therefore, the Nigerian government is advised to quickly put an end to the persecution of Major Hamza Al-Mustapha and his co-accused persons.

Trial within a reasonable time.

“Trial within a reasonable time” is one of the fundamental legal principles enshrined in our constitution to protect the rights of accused persons. This right is protected under section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria in the following words:

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 timeby a court or tribunal.” [Emphasis is mine]

The primary object of this provision is to avoid undue or excessive delay in the trial of an accused person whose fate is kept in suspense; like Al-Mustapha who is kept in jail while his guilt of the alleged crime is yet to be established. Indeed, the above provision is designed to ensure a fair trial of an accused person within such period of time not too long to foist a state of uncertainty and helplessness on an accused person. While interpreting the provision of Article 6(1) of the European Convention on Human Rights (which is similar with our section 36(4) of the 1999 Constitution), the European Court in Stogmuller v. Austria (1969) 1 EHRR 155 confirmed the object of trial within a reasonable time as stated above.

In most common law countries, an accused person is presumed innocent until s/he is proved guilty of the offence(s) charged. And the standard of proof is generally “proof beyond reasonable doubt”, which is a very high standard of proof required by the law of evidence in this country. Considering that an accused person is presumed innocent until proved guilty, there is an urgent need for speedy trial of criminal cases especially when one is denied of ones freedom. Otherwise, the presumption of innocence is rendered futile when an accused person is incarcerated in a jail house for a period long enough to serve the equivalence of the sentence s/he could ordinarily have served if found guilty. It is worse when an accused spends more time in a jail than he would if he had been convicted within a reasonable time.

The very important issue here is the determination of what a “reasonable time” means under our jurisprudence. This is necessary because without a clear and unambiguous definition of the term “reasonable time”, it will be difficult to give life to the provision of section 36(4) of the Constitution of the Federal Republic of Nigeria—which intends to secure the right of an accused person to be tried within a reasonable time. Generally, certain factors such as: the particular circumstances of the case at hand, its complex nature, and the conducts of the parties are normally taken into consideration. Presently, there is no clear yardstick established by the law or laid down by our courts for the determination of when an accused person’s right to be tried within reasonable time has been violated. Most pronouncements by our courts are, indeed, evasive and cannot serve as threshold for the handling of criminal cases pending before them. In Edet Effiom v. State (1995) 1 NWLR (Part 373) 507 @ 635, the Supreme Court of Nigeria while construing sections 33(1) and 33(4) of the 1979 Constitution, which is in pari materia with the provisions of sections 36(1) and 36(4) of the present 1999 Constitution held that:

It is generally accepted that what is a reasonable time within the context of sections 33(1) and 33(4) of the 1979 Constitution must depend on the circumstances, peculiarities and facts of each case. It is not therefore possible to lay down any hard and fast or fixed rule as to what a “reasonable time” is in the trial of every case.

Truly, it is not possible to imaginatively determine what a “reasonable time” could mean in every case; but it is possible to provide a time frame within which certain classes of cases, all things being equal, are expected to be finally dispensed with. Such cases could range from the very simple to complex ones. The most important thing is that the law expects that within a stipulated period of time certain cases ought to have been settled: so that accused persons could know their fates.

Our courts have failed to give a time frame within which criminal cases are expected to be finally discharged, whichever way. Rather, the courts have continued to bemoan their fates for lack of resources in Nigeria to fast track trials of criminal nature. Still in the case of Edet Effiom v. State (supra), the apex court—Supreme Court of Nigeria—when confronted with how expeditious cases are dispensed with in other countries took the ostrich-approach by warning that Nigeria should not be compared with other countries. Unfortunately, we can never improve our judicial and political systems without undergoing serious comparative examinations of what happens in other countries. The bulk of the law we practice today in Nigeria are borrowed. Only quite a few are indigenous. Even the indigenous or traditional legal precepts we have must pass certain Anglo-based tests like the “Repugnancy Test” before they could be enforced in this country. So, it is completely ridiculous for any court in Nigeria to justify backwardness in the name of “we are different”.

In Al-Mustapha’s case, it cannot be sufficiently argued that he does not have the resources to ensure his defence. Nor, can it be argued that Lagos State Government or even the Federal Government does not have the resources to prosecute the crime he was alleged to have committed against the state. The trial of Al-Mustapha and his co-accused persons at a Lagos High Court has lasted for about 12 years without end.

Some may argue that Al-Mustapha’s case is complex, and that is why it is taking that long. A reply to this type of gesticulation is: no matter how complex a criminal case may be aren’t 12 years long enough to have finished all legal battles from a High Court to the Supreme Court of Nigeria? In Al-Mustapha’s case, his trial has not left the High Court let alone going to the Court of Appeal or to the Supreme Court. This is offensively ridiculous!

Others who are happy that the young man and his colleagues are languishing in jail without conviction could equally argue that Al-Mustapha is responsible for the delay because he never wanted his case to go forward. My research reveals the contrary. It is the state represented by the Prosecution team that is dragging its foot. The state being comfortable in keeping Al-Mustapha and his co-accused persons (who have been denied bail) in jail is deploying all delay tactics to frustrate the speedy trial of the accused persons. It was the fearless Late Edo Ugbagwu who was murdered in cold blood—may his soul rest in perfect peace—for standing for the truth that reported in the 13 th November, 2009 edition of the Nation Newspaper what transpired in one of the sessions of the court as follows:

The defence in the attempted murder trial involving former Chief Security Officer (CSO) to the late Gen. Sani Abacha, Maj. Hamza al-Mustapha, and four others yesterday accused the prosecution of delay tactics to keep the accused perpetually behind bars. Lawyers representing the accused persons made the allegation following the absence in court of a prosecution witness and Commissioner of Police (CP) Mr. Felix Ogboadu which stalled proceedings before Justice Muftau Olokoba.

The prosecution asked for an adjournment to a later date in a latter (sic) to the court, saying the witness was on an official assignment. But al-Mustapha’s lawyer, Olalekan Ojo, said: "I want the court to infer from the evidence in support of the application that the witness and prosecution are not sincere to this court and they are only interested in delaying this case and by so doing inflicting pains on the accused persons who are not on bail, but in incarceration for over 10 years now. At no stage in the proceedings should the court allow any of the party to dictate the pace of the proceedings or be the master. This court must exhibit courage and fearlessness towards ensuring that every party before it is given its due”.

The report above, evidently, shows that Al-Mustapha’s defence team is eager to have the trial come to an end but the Prosecution is deploying all sorts of delay tactics to continue keeping Al-Mustapha and his co-accused persons in jail.

It is also necessary to remind those who are glad to have Al-Mustapha and his co-accused persons remanded perpetually in prison that fundamental objections such as the one questioning the admissibility of documents or the qualification of a judge who has shown clear evidence of bias cannot be regarded as delay tactics on the part of the defence team. Obviously, the newspaper report cited above has shown that the defence team has always wanted the matter to be speedily dispensed with. It is the Prosecution team and probably the judicial system being remotely controlled somewhere that is causing the delay.

Agreed that criminal cases generally do take long in this country to be finally dispensed with, none involving a high profile Nigerian who is denied bail has taken this long.

For 12 years Al-Mustapha has been denied Bail.

Section 36(5) of the 1999 Constitution provides that no matter how weighty or grievous a criminal allegation leveled against an accused person is, such person is still presumed innocent until proved guilty. As long as the guilt of the accused is not established beyond reasonable doubt, an accused is still innocent and therefore entitled to enjoy the right to personal liberty enshrined under section 35 of the constitution. It follows that when an accused is charged with a criminal offence, such person is entitled to a bail, which is granted at the discretion of a judge. The discretion, of course, must be exercised judicially and judiciously and cannot be used as instrument of oppression. To that extent, bail is generally granted in all cases except in cases of murder, where the proof of special circumstances and other tenuous conditions are required. But the truth is that even in murder cases, bail is grantable: all an accused needs do is to meet the conditions. Al-Mustapha and his co-accused persons are charged with the following offences: (a) attempted murder of The Guardian publisher Mr. Alex Ibru; and (b) the murder of Alhaja Kudirat Abiola, wife of the late Bashorun M.KO Abiola, the winner of the June 12, 1993 presidential election. Regardless, that Al-Mustapha is charged with the murder of Alhaja Kudirat Abiola, his lawyers have maintained that the proof of evidence supplied by the Prosecution has not disclosed any prima facie evidence against Al-Mustapha in that regard. Even if a prima facie case is established against him, the judicial authorities still give room for the grant of bail in that circumstance. In this regard, the Court of Appeal in Abdul Gafar Alaya v. The State [2007] 16 NWLR (Part 1061) 483 @ 502 held that:

What emerges from a combination of the provisions of the Criminal Procedure Code and the Constitution is that even where a court is confronted with application for bail from a capital offender the discretion is his to grant bail where the circumstances permit. There are motley authorities and counsel on both sides are in tandem that such discretion must be exercised judicially and judiciously.

For over 12 years our courts have refused to judicially and judiciously exercise their discretions to grant bail to Al-Mustapha and his co-accused persons. They are under lock and key at Kikiriki Maximum prison without access to their wives, children, and lawyers. This is injustice at its peak. Reporting the denial of access to Al-Mustapha, Hezekiah Oluwasoji of the Nigerian Compass on 11 th May, 2009 noted that:

COUNSEL to Maj or Hamza al-Mustapha, Mr. Olalekan Ojo, has told Justice Mufutau Olokooba of the Ikeja High Court, Lagos, that he is being denied access to his client by prison officials.

He made the oral complaint last Friday shortly before the case was adjourned again.

….

Ojo cited occasions when he had been harassed by warders while visiting Al-Mustapha, adding that there were also instances where homes of some visitors to al-Mustapha and others had been searched by security operatives.

Denial of access to the accused persons is part of the state’s tactics in persecuting them. For over 12 years, Al-Mustapha has not seen his son who was two (2) years old when he was first arrested. For 12 years he has not been allowed to eat the food prepared by his wife. For over 12 years he has not shared the same bed with his darling wife. Three years ago he lost his father and could not give him the last respect. His mother is reported to be seriously sick and the old woman’s wish is to see her favourite son before she dies. But the Nigerian state will not allow that to happen. We are all mortals! Yet, those in positions of authority behave like gods.

The endless incarceration of Al-Mustapha is not without connivance from those who feel it is their time to get a pound of flesh from the intelligent military officer.

The Political Nature of Al-Mustpha’s Trial

Major Hamza Al-Mustapha was the Chief Security Officer to our Late Head of State, General Abacha. His mandate was to protect his boss and his family. The highest decision making body during the Abacha’s regime was the Provisional Ruling Council of which Al-Mustapha was not a member. General Bamaiyi who was later let off the hook was a principal member of this body. Al-Mustapha’s sin was that he never allowed some political gladiators, especially both retired and serving Generals then, the unlimited freedom of having access to Abacha. So, when General Abdulsalam Abubakar took over (with the consent and support of Al-Mustapha who was not overtly ambitious for power), his first assignment was to arrest Al-Mustapha. The charges going on in Lagos is only a smoke-screen because those who brought the charges were never in support of June 12 and cannot be regarded as democrats. Neither can it be said that they were supporters of NADECO. It was only an opportunity to get their pound of flesh.

Presently, the incarceration of Al-Mustapha and his co-accused persons has outlived the tenure of three regimes. And now we are watching what President Goodluck Ebele Jonathan will do. Will Jonathan maintain the traditional stoic silence for which our past Presidents are known for? Only time will tell.

Shame on Northern Governors for Keeping Mute in the Face of this Persecution.

If there are visible leaders anywhere in Nigeria, they are our governors. There are different governors’ forums in this country. One is the Northern Governors’ Forum. This forum is supposed to articulate the interests of the North and ensure they are protected within the ambits of the law. Yes, Al-Mustapha is a Nigerian, but he is first a Northerner before being a Nigerian. Many Nigerian politicians have not shiedaway from claiming the primordial loyalties of their respective tribes, zones, or sections of the country. Indeed, the principle of federal character enshrined in the Nigerian constitution tends to highlight the essence of primordial loyalties in our country.

Al-Mustapha is from Yobe State, one of the nineteen states of the North. It is therefore surprising and ridiculous that for all the series of meetings being held by the Northern Governors’ Forum, they have not found it fit to discuss the unjust incarceration of Al-Mustapha, their son, and then work towards finding a political solution to an obvious political problem. Instead, these governors are busy canvassing argument in favour or against rotational presidency: when it is obvious that what ordinary Nigerians need is a leadership that will put food on their table and ensure steady water and power supply.

My dear Governors, you should better re-think: for one of your prominent sons has been languishing in jail for close to twelve years without end in sight.

Right the wrong: For Justice Delayed is Justice Denied.

Justice delayed is justice denied. Twelve years of incarceration in the name of trial that has no end in sight is a great injustice that is going on in our land. President Jonathan Goodluck and Governor Fashola of Lagos State must work out a political scheme that will see Al-Mustapha and his co-accused freed. History will not be kind to President Jonathan and Governor Fashola if they maintain the traditional silence for which their predecessors are known. The Ecclesiastes 1: 2 reminds us that: “Vanity of vanities, saith the preacher, vanity of vanities; all is vanity”. If there is anything that intoxicates and at the same time so transient that its beholders are blinded from seeing its ephemeral nature, it is POWER. No one ever holds it for too long; no matter how powerful one presumes to be. Indeed, the wielders and victims of power often change positions with those who are controlled (victims of power) turning out to wield power and therefore controlling those who once controlled them. That is nature and we must realize it. I therefore plead with those in power to help facilitate the release of Al-Mustapha and his co-accused persons who have been under lock and key for the past twelve (12) years. These people deserve to share their foods and drinks with their families. They deserve the love of their families and the comfort of their homes. They are human beings and must be treated humanely.

Finally, and for the encouragement of speedy trial of criminal cases in Nigeria, it is recommended that Nigeria should follow the Philipino example by enacting a Speedy Trial Act that will apply to all Courts of Records in Nigeria. The Act will set out time limits for the trial of criminal cases. It will also regulate the following: (a) plea bargaining; (b) stipulation of facts; (c) marking and identification of evidence of parties; (d) waiver of objections to admissibility of evidence; (e) pre-trial agreements; (f) non-appearance at pre-trial conference; (g) pre-trial order; and (h) such other matters as will promote a fair and expeditious trial in Nigeria.

Jirinwayo Jude Odinkonigbo, Ph.D (Osgoode) is an Abuja-based Legal Practitioner.

odinkonigbo@gmail.com