Nigerian Government Defends Treason Trials Under Abacha
In a curious move, the Government of President Olusegun
Obasanjo has defended as valid and fair the treason trials conducted by a
special military tribunal in 1998 in which former Editor of The Diet
newspaper, Mr. Niran Malaolu, and some senior military officers were
jailed under the Abacha regime.
Its defence of the trials was made in its response last
month to a complaint lodged against it by Media Rights Agenda (MRA) at the
African Commission on Human and Peoples’ Rights in Banjul, The Gambia,
over the trial and conviction of Malaolu on charges of concealment of
treason.
In the complaint lodged with the Commission in May 1998,
MRA complained about Malaolu’s arrest at The Diet newspaper office
in Lagos on December 28, 1997, his detention and subsequent arraignment,
along with some senior military officers and other civilians, before the
special military tribunal constituted under the Treason and Other Offences
(Special Military Tribunal) Decree No. 1 of 1986 on charges of treason.
It requested the Commission to hold, in accordance with the
principles previously established by the Commission in several decided
cases, that the Government of Nigeria had violated Articles 3, 4, 5, 6, 7
9 and 26 of the African Charter on Human and People Rights.
MRA urged the Commission to direct the Nigerian Government
to take necessary steps to quash Malaolu’s conviction by the Special
Military Tribunal owing to the fact that it was a blatant miscarriage of
justice as the entire trial was marred by either a series of actions or
inaction which violated Malaolu’s rights.
It also requested the Commission to direct the Nigerian
Government to pay a compensation to Malaolu for the numerous violation of
his fundamental rights which he suffered in the course of arrest,
detention, trial, conviction and subsequent imprisonment.
However, in a defence lodged on September 22 at the African
Commission on behalf of “the competent Nigerian authorities” by the
Nigerian High Commission in The Gambia, the Government contended that
“Malaolu’s trial was conducted under a law which was validly enacted by
competent authority at the time”.
The Government explained that “The treason and Other
Offences (Special Military Tribunal) Act, CAP. 444 of the Laws of the
Federation of Nigeria, 1990 under which Malaolu was tried rose from the
ashes of the Treason and Other Offences (Special Military Tribunal)
Decree No. 1 of 1986 enacted by the Military Government headed by General
Ibrahim Babangida (Retired).”
It submitted that “Malaolu was, therefore, charged, tried,
convicted and sentenced to life imprisonment in accordance with the
provisions of a known law.”
In challenging MRA’s argument that the trial violated
Malaolu’s fundamental rights, the Government stressed that “Malaolu was
tried along with a number of other people accused of involvement in
alleged plot to overthrow the late General Sani Abacha.”
Saying that it did not wish to go into the merit or demerit
of the trial, the Government insisted that “it was not an ostensible case
of victimisation against Malaolu or his profession.” The Government also
claimed, erroneously, that “Indeed, one or two other journalists were also
sentenced to imprisonment at the same trial”.
On MRA’s contention that Malaolu’s trial was unfair as,
among other things, it violated Section 33(4) of the 1979 Constitution,
the Government said: “It can be argued that the right to a fair hearing
in public was subject to the proviso that the trial court or tribunal
might exclude from the proceedings persons other than the parties thereto,
in the interest of defence, public safety, public order, etc.”
The Government claimed, however, that “The whole episode
took place during a prolonged military regime. It is well known all over
the world that military regimes are abnormal regimes and a painful
aberration. There was no way of controlling any wanton acts of abuse of
fundamental human rights by a military junta determined to stay in power
at all costs, no matter whose ox is gored.”
Regardless of the claim, the Government said it intended to
“provide effective and adequate representation” to contest the complaint
at the hearing scheduled for the 28th Ordinary Session of the
African Commission, which is taking place in Cotonou, Republic of Benin,
from October 23 to November 6, 2000.
The Nigerian High Commission, however, affirmed “the
capacity and determination of the current democratically elected
government in Nigeria to defend and promote the rights of its citizens.”
Ironically, President Olusegun Obasanjo was tried,
convicted and sentenced to life imprisonment under the same law and
through a similar process in 1995 and has consistently maintained that his
trial and conviction were unfair and illegal.
MRA’s complaints before the Commission, to which the
Government was responding, were, among other things, the fact that:
§
Malaolu was persistently refused access to
his lawyer for the 49 days he was detained prior to his arraignment before
the special military tribunal, especially when he was being severely
tortured in a bid to extract a self-incriminating confession from him, and
subsequently in the course of his trial, when a military lawyers was
foisted on him.
§
While he was in detention, he was subjected
to such cruel and inhuman or degrading treatment, as having his legs and
hands chained to the floor day and night and that from the day he was
arrested and detained, until the day he was sentenced by the tribunal, a
total period of 147 days, he was not allowed to take his bath, he was fed
irregularly and kept in solitary confinement in a cell meant for condemned
criminals.
§
Members of the Special Military Tribunal,
before whom he was charged at the commencement of the trial, refused to
intimate him of the charges on the basis of which he was being arraigned?
§
His trial was conducted in secret despite the
intense pre-trial publicity mounted by the government in their attempt to
convince members of the public that those arrested actually plotted a coup
and so were guilty of treason.
§
He was kept for the 147 days he was detained
(before he was sentenced) in a cell meant for condemned criminals only,
which was a clear indication that he had been pronounced guilty by the
government even before he was arraigned before the Special Military
Tribunal and that his subsequent arraignment before the Tribunal was
merely an attempt by the government to create an erroneous impression that
the basic tenets of the rule of law and due process had been followed in
arriving at the decision to convict him.
§
In the light of the manner of
constitution and composition of the tribunal, it did not meet the
requirements of competence, independence and impartiality for an
adjudicating body, whether a court or a tribunal, as the members were
chosen by the then Head of State, General Abacha and members of the
Provisional Ruling Council (PRC) against whom the alleged offence was
committed, while the Chairman of the tribunal, Major General Victor Malu,
who is the present Chief of Army Staff, was also a member of the PRC,
which by the provisions of the Treason and Other Offences (Special
Military Tribunal) Decree No. 1 of 1986, was empowered to confirm the
verdict and sentences passed by the tribunal. This is in addition to the
fact that the prosecution team was also answerable to the PRC.
§
Members of the Special Military Tribunal did
not have legal training, while the tribunal did not apply the rules of
evidence, both of which factors the Commission has previously held to be a
requirement for an adjudicating body to be competent.
§
Under international human rights law,
military courts do not have the power to try offences not committed by
members of the armed forces in the course of their duties and as such,
since Malaolu is a civilian, he could not have been tried by a military
tribunal.
§
Malaolu’s interrogation by the Special
Investigation Panel, so as to harass and intimidate him, over his role in
the publication of certain articles in The Diet newspaper, of which
he was editor, violated his right to freedom of expression.
§
While he was in prison, two attempts were
made on Malaolu’s life in violation or his right to respect for his life
and the integrity of his person.
§
Malaolu could not appeal against the decision
of the Special Military Tribunal to a higher Judicial body since under
Section 5 of Decree 1 of 1986, under which he was tried and convicted,
convicts are only allowed appeals to the PRC, the executive body which
constituted the Special Military Tribunal in the first place, ordered the
trial of the suspects and had a clear interest in their being punished.
The Commission is expected to deliver its verdict on the
complaint during its 28th Ordinary session which ends on
November 6.
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