Femi Falana, a lawyer and human rights activist, has said a general court-martial lacks the power to try the soldiers accused of killing policemen to free Bala Hamisu, a suspected kidnapper also known as Wadume.
Abubakar Malami, the Attorney-General of the Federation (AGF), had said the soldiers have not been arraigned before a civil court because they were being court-martialed.
However, Falana said: “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.”
Tijjani Balarabe, an Army Captain, in August, led soldiers attached to him to attack a team of policemen who had arrested Wadume.
Three policemen and two civilians were killed in the process as Wadume was set free.