The decision to sentence 12 Soldiers of the Nigerian Army to death by military authorities, allegedly for firing shots at a General Officer Commanding (GOC) needs to be re-considered for many reasons.
The narrative has it that on the night of 14 May 2014, some soldiers at 7th Division of the Nigerian Army in Maiduguri fired shots at the car of their GOC, Major-General Abubakar Muhammad, for allowing their colleagues to be killed in an ambush by Boko Haram when it could have been avoided, especially if he had listened to their plea to allow them pass the night in Kalabalge Local Government Area in order for them to embark on their journey the following morning. It was reported that the soldiers have earlier complained of insufficient ammunition, food and allowances. The visit of the GOC was said to have coincided with the arrival of the corpses of soldiers killed in an ambush in Chibok, hence the provocation and reaction of the 12 Soldiers.
On these facts, the soldiers were court-martialled for mutiny and attempted murder. The punishment is death penalty. Just as the Premium Times editorial of September 25 clearly opined, this writer also does not in any way “condone the actions of these soldiers. Using violence to express frustration and dissent is never justified. There are due processes, which should be followed to register displeasure and discontent.” That said, the principle of proportionality must be applied in reaching a logical response.
Again, this writer agrees extensively with the Premium Times editorial which suggests the absence of mens rea (intention) element for murder or attempted murder to be complete under s.52 of the Armed Forces Act. How could 12 well trained combatant soldiers with the intention to kill one man within range miss their target? If these Soldiers really wanted to kill or inflict harm on their target, they would have done so easily.
Let us take a look at the Armed Forces Act under which they were convicted of mutiny and sentenced to death. A brief summary of Section 52 provides interpretation for mutiny (but not limited to) as striking a superior officer or using violence on a superior officer other than by striking him. Shooting at the direction of the officer without evidence of physical injuries cannot be inferred in law as striking. Just as shooting at the direction of the superior officer can only be inferred in law as an assault. Upon conviction, the sentence for assault all over the world cannot be death.
Furthermore, there is nowhere in the world where attempted murder is punishable by death sentence. This decision is irrational and unreasonable. To borrow the words of Lord Diplock in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation  1 KB 223, it is “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” The fact that the military is seen as a “zombie” profession does not mean that they should lack rational judgments, infact; they need to show rationality because that is the hallmark of what makes a competent Force.
Sentencing these soldiers to death for an offence they did not commit is pure murder. It is unfair and unjustifiable to try to use the law to murder men who have given their lives to the service of our country, defense of our democracy and protection of lives and properties of fellow citizens with little or no care.
Since May 2014, there have been many more military casualties of insurgent ambush and failure of intelligence. In the wake of the rising military casualty rate, it was even speculated that Boko Haram had infiltrated top military officers.
What the junior officers did by opening fire in the direction of the GOC was a reaction to perceived betrayal of their superior’s trust not just to them but to the coat of arms to which they have pledged their allegiance. It is this betrayal that should lead to capital punishment not the reaction to redress it. The GOC should be held responsible for his orders and his command.
The wrongs of the military in arriving at the death sentence are quite a number. Legally and morally, the military authority through its GOC owes all the soldiers in its command a duty of care. The duty to guarantee their safety during operations, provision of basic necessities required for field operations, timely payment of their allowance and the guarantee of social safety nets among many others.
There is a legitimate expectation of these soldiers for their superiors to uphold this duty of care. The breach of this duty and many others could lead to frustrations and provocation of any man on the “Ikeja omnibus.” Our reactions to frustrations and provocations are all different and must not be judged objectively alone but subjectively as well. Those Soldiers lost their colleagues to Boko Haram terrorists in an avoidable situation if only their GOC listened to them.
Those soldiers fought with limited arms and without care; they risked their lives to keep our country together without proper care. They were wrong but they don’t have to be killed.
Under Nigeria’s constitution, there is an automatic provision of appeal for all death sentences. So, the military has an opportunity to right its wrong using the window of appeal which the soldiers should take advantage of.