In a letter addressed to Lateef Fagbemi, the Honourable Attorney-General of the Federation and Minister for Justice, human rights lawyer, Femi Falana, SAN has called for an immediate end to what he describes as “egregious violations” of the human rights of innocent members of the Okuama community in Delta State.

Falana highlighted several incidents of alleged abuse and injustice in his letter, dated April 24, 2024.

He wrote: “We are disturbed to learn that the people of Okuama in Delta State and Igbomotoru in Bayelsa State have been subjected to horrendous human rights abuse over the action of a gang of criminal elements who killed the 16 soldiers.

“Hence, we are compelled to call on the office of the Attorney-General of the Federation and Minister of Justice to halt the egregious human rights abuse of innocent people in both communities by addressing the following complaints.”

He criticised the military’s declaration of suspects as wanted without proper legal authorization, emphasizing the need for adherence to due process and the rule of law.

Below is the letter:

April 24, 2024

The Honourable Attorney-General of the Federation & Minister for Justice,

Federal Ministry of Justice,

Federal Secretariat,

Abuja, FCT.

REQUEST TO END EGREGIOUS VIOLATIONS OF THE HUMAN RIGHTS OF INNOCENT MEMBERS OF OKUAMA COMMUNITY INTRODUCTION

As you are no doubt aware, our law firm successfully frustrated the plan of the neocolonial Nigerian State to waste the lives of 70 soldiers who were convicted and sentenced to death for mutiny by two courts-martial in 2014. As they did not commit mutiny by demanding adequate weapons to enable them to carry out the counter-insurgency operations in the North East zone, we decided to defend majority of them. We equally defended two Generals and other officers who were prosecuted in military courts to cover up a coterie of senior military officers who had engaged in the criminal diversion of the huge funds earmarked for procurement of arms and ammunition by the Federal Government.

But, based on the representation made on behalf of the 70 convicted soldiers by our law firm, the death sentences imposed on them were commuted to 10 years imprisonment by the military authorities. We also appealed to former President Muhammadu Buhari, who granted unconditional pardon to the 70 convicted soldiers in exercise of his powers under section 175 of the Nigerian Constitution. We are currently pursuing their reinstatement and/or payment of their terminal benefits on account of the unconditional pardon.

It may interest you to know that we have also secured legal reprieve at the National Industrial Court and the Community Court of Justice (Ecowas Court) for over three thousand officers and soldiers whose appointments were unlawfully determined contrary to the provisions of the Harmonised Terms and Conditions of Service for Officers and Conditions of Service for Regular Combatants.

However, we are convinced that we equally have a duty to defend civilians who are either killed or intimidated by the armed forces without any legal justification. Hence, we have demanded the trial of the soldiers indicted by a judicial commission of enquiry for killing 347 members of the Shia movement and burying their bodies in an unmarked grave in Mango, Kaduna State in December 2015. We have also demanded the trial of the 10 soldiers who killed three policemen and freed a notorious kidnapper who had been arrested and was being taken to custody in Jalingo, Taraba State on August 15, 2019.

We are disturbed to learn that the people of Okuama in Delta State and Igbomotoru in Bayelsa State have been subjected to horrendous human rights abuse over the action of a gang of criminal elements who killed the 16 soldiers. Hence, we are compelled to call on the office of the Attorney-General of the Federation and Minister of Justice to halt the egregious human rights abuse of innocent people in both communities by addressing the following complaints:

· UNLAWFUL KILLING OF 16 SOLDIERS AND UNLAWFUL DEPLOYMENT OF TROOPS

On March 14, 2024, 16 members of the armed forces, including the Commanding Officer of 181 Amphibious Battalion, two majors, one captain, and 12 personnel of the battalion were brutally killed by a gang of militants in Okuama in the Ughelli South Local Government Area of Delta State. The soldiers were said to have embarked on a “peace mission” in the community. We condemned the brutal killing of the soldiers and demanded the arrest and prosecution of the culprits.

In order to avoid the involvement of the members of the armed forces in the resolution of communal disputes and the unwarranted killing of soldiers, the Federal Government should henceforth comply with the relevant provisions the Constitution. In the case of All Progressive Congress v Peoples Democratic Party (2015) LPELR 24349, the Court of Appeal held that the President lacked the power to call on the Armed Forces to restore law and order in any part of the federation without the approval of the National Assembly in accordance with sections 217(2) and 218(4) of the Constitution as amended.

Similarly, in the case of Femi Falana SAN v Chief of Army Staff, (Suit No. FHC/L/CS/1939/2019), the Applicant asked the Federal High Court to stop the Nigerian army from conducting “operation positive identification” exercise which entailed the demand of valid means of identification from Nigerians by military officials across the country. The trial judge, Justice Railwan Aikawa declared the exercise illegal and unconstitutional on the ground that members of the armed forces lack the power to subject civilians to any form of security check outside the North East geopolitical zone where the country is involved in waging a counter-insurgency operation.

It is high time the federal government embarked on adequate funding of the police to maintain internal security in the entire country. It is the only way to ensure compliance with the decision of the Court of Appeal inYusuf v Obasanjo [1](2005) 18 NWLR (PT 956) 96, where it was held that “It is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious step or steps should be taken to civilianize the polity to ensure the survival and sustenance of democracy”.

· UNLAWFUL KILLING OF UNARMED PEOPLE AND UNLAWFUL OCCUPATION OF OKUAMA

Following the gruesome murder of the 16 soldiers, we appealed to the military authorities to prevent reprisal attacks on innocent members of the Okuoma community. Unfortunately, our appeal fell on deaf ears as many houses were set ablaze while the owners of such buildings and other residents including children were chased out of the community. Thus, Okuoma has been seized and occupied by armed troops since March 14, 2024.

Armed troops also invaded the Igbomotoru community in the Southern Ijaw Local Government Area of Bayelsa State on March 18, 2024. The troops in 5 gunboats were reported to have razed three houses suspected to be the hideout of a militant leader allegedly involved in the killing of the 16 soldiers in Okuama. Scores of people are alleged to have been killed in Okuama and Igbomotoru communities by the invading troops.

In justifying the illegal occupation of Okuama, the Chief of Defence Staff (CDS), General Christopher Musa, has said that the Army is conducting a cordon-and-search in the community. According to the CDS, “At the end of it (cordon-and-search), the communities will go back and rebuild. We’re working together with the community; nobody is doing anything to infringe on their rights. Also, since it’s an ongoing operation, we wouldn’t want them to come in and be shot or mistaken for antagonists. We’re duty-bound to protect them. As soon as we’re done with the cordon-and-search, they’ll go back.”

In urging you to end the illegal military occupation of Okuama, you may wish to remind the CDS that following the unlawful killing of soldiers in Odi, Bayelsa State in 1999 and Zaki Biam in Benue State in 2001, both communities were invaded and set ablaze in in reprisal attacks on the orders of former President Olusegun Obasanjo. In the two cases filed against the military invasion, the Federal High Court condemned the gruesome murder of the soldiers but decried the collective punishment meted out to the communities that were destroyed by soldiers. Consequently, the Federal High Court awarded N37.5 billion and N41 billion to the victims of the military invasion in Odi and Zaki Biam respectively.

It has become necessary to draw the attention of the government and military authorities to the fact that the Geneva Convention was ratified and domesticated by Nigeria in 1960. Article 33 thereof provides that no protected person may be punished for an offence he or she has not personally committed and that collective penalties and, likewise, all measures of intimidation or of terrorism are prohibited while reprisals against protected persons and their property are prohibited. To that extent, the collective punishment of the people of Okuama and Igbomotoru by armed troops is illegal in very material particular.

2. UNLAWFUL DECISION OF MILITARY AUTHORITIES TO DECLARE SUSPECTS WANTED

It was recently reported that the defence headquarters had declared 8 suspects including a traditional ruler wanted in connection with the killing of the 16 soldiers. We have confirmed that the suspects were declared wanted illegally as it was not authorized by a court of competent jurisdiction. In Benedict Peters v Economic and Financial Crimes Commission (Suit No FCT/HC/BW/CV/23/2017) the high court of the Federal Capital Territory ruled that the Economic and Financial Crimes Commission (EFCC) lacks the power to declare anyone wanted without obtaining a court order. The presiding judge, Justice Othman Musa held that though the EFCC could declare as wanted persons those who fail to honour its invitation for investigation, it could only do so ifn it obtains a court order for that purpose.

Similarly, in Dr Issa Perry Brimah v Nigerian Army, (Suit No FHC/ABJ/CS/267/2019), Justice Ijeoma Ojukwu of the Federal High held that “It must be stated here without equivocation that the defendant [Nigerian Army] has no right to declare the plaintiff wanted without following the appropriate procedure. The Judge further said that the defendant cannot arrest the plaintiff arbitrarily without making a formal report to law enforcement agency with the mandate to enforce law and order. Otherwise, it would transmute to self-help. The duty of the defendant is to make a formal report to the appropriate authority like the police and await the outcome.

We have confirmed that the detained traditional ruler has been released by the defence headquarters for want of evidence. We have also confirmed that the defence headquarters published the photograph of Mr. in lieu of his younger brother that was declared wanted. In view of the settled law on the matter, we urge you to direct the defence headquarters to submit the names of the suspects to the Police with a view to obtaining a court order to declare them wanted.

4. UNLAWFUL DECISION OF MILITARY AUTHORITIES TO INVESTIGATE MURDER SUSPECTS

The military authorities have announced the arrest and detention of some suspects over the murder of the 16 soldiers. We have confirmed that the suspects are undergoing interrogation in the defence headquarters at Abuja without access to their lawyers as stipulated by the Administration of Criminal Justice Act. The denial of access to the lawyers alone may vitiate the eventual trial of the detained suspects.

In Miss Grace Anita Paul v. The Chief of Army Staff & Ors, the Federal High Court held that the Nigerian Army lacks the power to arrest, investigate and hold in custody, anyone who is not subject to the Armed Forces Act or any other military law. The trial judge, Justice Taiwo Taiwo warned the military not to usurp the powers of the Nigerian Police Force under Sections 4 and 84 of the Police Act which empowers the police to detect and investigate crimes in Nigeria.

The authorities of the armed forces should be made to realise that the Nigerian Army lacks the power to arrest, detain, investigate and charge civilian suspects with any offence whatsoever as they are not subject to service law. In several cases, the Nigerian Army has been ordered by Nigerian courts to desist from subjecting unarmed civilians to any form of harassment or intimidation whatsoever.

In Senator Bola Ahmed Tinubu v Chief of Army Staff (Suit No FHC/L/CS/1510/15), the Applicant complained that for three consecutive days, helmet-wearing and battle-ready soldiers had kept surveillance at his Ikoyi home at 26, Bourdilion Street, Ikoyi, Lagos. John Tsoho J. (as he then was and now Chief Judge of the Federal High Court) found the action of the troops illegal and proceeded to restrain the Chief of Army Staff, his agents and privies from arresting, detaining, harassing or intimating the applicant and further laying siege on his house.

It ought to be pointed out that murder is not a military offence to warrant investigation by the defence headquarters. Recent experience has proved that the Nigeria Police Force is well positioned to arrest the suspects involved in the dastardly killing of the 16 soldiers. For instance, At least nine suspects have been arrested by the police over the February 26 murder of six police personnel killed during a special operation at Evil Forest in Ughelli North LGA of Delta State. On November 4, 2023, the 19 suspects arrested in connection with the disappearance and death of Idris Alkali, a retired general. The suspects are currently on trial at the Plateau State High Court.

5. UNLAWFUL DECISION OF MILITARY AUTHORITIES TO SET UP BOARD OF INQUIRY TO PROBE CIVILIANS

The Board of Inquiry constituted by the Defence Headquarters to probe the March 14 killing of 16 soldiers at Okuama, Delta State, commenced sitting in Warri, Delta State last week. The Chairman of the Board, Air Vice Marshal David Ajayi, told Governor Sheriff Oborevwori in Warri: “We are on a fact-finding mission and not to apportion blame. We are here to gather facts from security agencies, community leaders, and community dwellers.”

By virtue of section 172 of the Armed Forces Act, a board of inquiry is set up by military authorities to consider a wide range of misconduct or issues that pertain to the conduct or performance of members of the armed forces or their suitability for continued military service. Therefore, the authorities of the armed forces ask the power to investigate alleged criminal activities of citizens who are not subject to service law.

For the avoidance of doubt, section 172(4) of the Armed Forces Act states that “Evidence given before a board of inquiry shall not be admissible against a person in a proceeding before a court-martial or at a summary trial by the commanding officer or appropriate superior authority other than a proceeding for an offence under section 101 of this Act or for an offence under section 114 of this Act when the corresponding offence is perjury.”

Under the current democratic dispensation, the Governor of Delta State, Hon. Sheriff Francis Orohwedor Oborevwori is the only competent person empowered by the Delta State Tribunal of Inquiry Law to set up a commission of enquiry to investigate the killing of the 17 soldiers. Our authority for this submission is the case of Fawehinmi v Babangida (2003) 10 WRN 1, where the Supreme Court held that the power to institute a judicial or administrative inquiry to investigate civil disturbances is vested in the Governor of each state of the Federation and that the power of the President to set up a panel of inquiry is limited to the Federal Capital Territory.

Since the board of inquiry set up by the defence headquarters lacks the power to investigate “community leaders and community dwellers”, it should be disbanded forthwith. The Delta State Governor ought to be advised to institute a judicial commission of enquiry to probe the remote and immediate cause of the brutal killing of the 16 soldiers at Okuama.

CONCLUSION

A few months ago, we condemned the arrest and detention of a former governor of the Central Bank of Nigeria, Mr. Godwin Emefiele by the State Security Service for alleged economic crimes. Our request that the case be transferred to the Economic and Financial Crimes Commission was ignored until the High Court of the Federal Capital Territory declared the arrest and detention of Mr. Emefiele illegal and awarded him reparation of N300 million.

On that occasion, we drew the attention of the Federal Government to the case of Dr Bukola Saraki v. Federal Republic of Nigeria (2018) 16 NWLR (pt. 1646) 433-434 where the supreme court had ruled that the Economic and Financial Crimes Commission lacks the vires to investigate and prosecute the appellant for the breach of the provisions of the Code of Conduct Bureau and Tribunal Act. It was for that principal reason that Senator Saraki was freed by the apex court.

As the judgment of the Supreme Court is binding on all authorities and persons in Nigeria, the armed persons should be directed by your office to transfer all arrested suspects and their case files to the police without any further delay. This is without prejudice to the manhunt for the remaining suspects by the Nigerian Army. But once the remaining suspects are arrested, they should be handed over to the police in accordance with section 21 of the Administration of Criminal Justice Act.

In view of the foregoing, you will agree with us that you owe it a duty to ensure that the infringement of the human rights of the Okuama people is halted while the suspects are isolated and brought of justice in strict compliance with the Administration of Criminal Justice Law of Delta State.

While awaiting your prompt response to this letter, please accept, as usual, the assurances of our highest esteem and professional regards.

Yours sincerely,

FEMI FALANA SAN, FCI Arb. (Vanguard)

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