By BARTHOLOMEW MADUKWE

An American philosopher, Henry David Thoreau, once said, “The law will never make men free, it is men that have to make the law free,” but that did not hold last week Friday as Major Hamza Al-Mustapha and Lateef Shofolahan were both discharged and acquited of the death sentence handed them by Justice Mojisola Dada of Lagos High Court, who found them guilty of conspiracy and murder of Alhaja Kudirat Abiola.

Al-Mustapha was the Chief Security Officer to late General Sani Abacha who was military head of state between November 1993 and June 1998 while Shofolahan was former Personal Assistant to late Alhaja Kudirat Abiola, wife of the presumed winner of the june 12, 1993 presidential election late Chief MKO Abiola. The court of appeal in Lagos held that there was not enough evidence to incriminate the duo in the murder of late Kudirat.

The appellate court ruled: “It is preposterous that in a 326-page judgment, the lower court was only concerned with securing a conviction at all costs. Just as God is no respecter of persons, so also is this court. I hereby order that the appellants be discharged and acquitted while the conviction and sentence of the lower court, is hereby discharged.”

It will be recalled that during the transition government of General Abdulsalam Abubakar, following Abacha’s sudden death in June 1998, Al-Mustapha was arrested and subsequently arraigned in court in october that year along with Abacha’s son Mohammed, charged with the murder of Kudirat who was shot in June 1996 . However, the prosecution failed to establish a prima facie case against Mohammed and he was discharged and acquited.

Alhaji Shofolahan, Late Alhaja Kudirat Abiola and Major Hamazat Al-Mustapha

Justice Dada on July 2011 re-opened the trial against Al-Mustapha and his co-accused (Shofolahan) in Kudirat’s murder. While the trial‘lasted, Al-Mustapha was detained at the Kirikiri maximum security prison. In the first two weeks of August, Al-Mustapha and Sofolahan testified to their innocence over Kudirat’s murder.

The court adjourned the case to November 10, 2011 when counsels to both parties were expected to file and adopt their written addresses. After receiving written submissions and hearing the addresses by the counsel to both parties on that date, Justice Dada then fixed  January 30 ,2012 for delivering her judgment. The court subsequently found the duo of Mustapha and Shofolahan guilty of the offence and were sentenced to death by hanging.

Meanwhile, a Senior Advocate of Nigeria (SAN), Chief Ladi Rotimi-Williams, expressed shock over the appeal court’s judgment, saying “I don’t know how they arrived at their conclusion. The law is an ass, I must say. It is surprising, very surprising and shocking. And I believe the state will appeal that judgment. Honestly, it is surprising and shocking how they arrived at the conclusion that he is not guilty because the facts are there.

Sometimes, I don’t understand what is going on with all my long years in the inner bar. I am not suggesting any impropriety or that there is some foul play but it is shocking. Unless the state prosecutor hopelessly messed up the case; otherwise, I will say it is shocking.”

Mr Norrison Quakers SAN, on his part, said he saw it coming when he was informed that the former President of the Nigerian Bar Association (NBA), Mr Joseph Daudu,SAN had taken over the case on behalf of Al-Mustapha.

He said: “Let me first start by saying that I saw it coming, when I was informed that Mr J.B. Daudu SAN had taken over the case at the appeal. And following the Supreme Court judgment in the earlier Mohammed Abacha’s case; in this same manner where he was also discharged by the supreme court.

From the facts and circumstances of the case, it will be difficult to sustain a conviction. I am not surprised at the outcome. On whether the lower court judge was biased in the conviction, the Court of Appeal must have made its deductions from the record placed before it. Mind you the appellate court is a court saddled with three judges. So now, it is three against one, they have had the privilege of really reviewing the records.”

According to Mr Tayo Oyetibo SAN, “there is still the opportunity of having the Supreme Court pronounce on it. One would expect that the case would run a logical journey in the hierarchy of courts. They still have one more level. The principle is that in a criminal case especially, a felony has to be proved beyond reasonable doubt. And it has always been the practice of the court to lean in favour of the accused where there is any shadow of doubt.

The delay in the matter so far was not caused by the judiciary. If you trace the history of the case, it was not the judiciary that was forestalling the proceeding, but the parties concerned. The parties have to move from one judge to another, and all the judges were prepared for the case.”

Chairman NBA- Ikeja branch, Mr Monday Ubani, described Al-Mustapha and Shofolahan’s freedom as temporary, stressing “at this point in time, it is a temporary relief because the Court of Appeal is not the final court of jurisdiction in this matter. After the initial shock, which I know Lagos State would have suffered, they are likely going to appeal to the Supreme Court over the judgment.

It has been a long trial following all manners of applications brought by the defense counsel until finally the substantive trial commenced. If the Appeal Court has looked at the judgment of the lower court and discovered that there was error, either on the part of misapplication of facts and law, and probably upturned the judgment, it is only temporary. The Supreme Court will still have the final say on that issue.

A renowned human rights lawyer, Chief Morah Ekwunoh, noted that the best response lies in golden mum or silence in view of the high wire sensitivity, controversy, and ethnicity which formed its bedrock, adding “the death of Alhaja Kudirat Abiola in the hands of repressive state apparatus, no doubt will remain an albatross on the neck of Nigeria until justice relating to it is clearly seen to have been done. However, on the judgment of the Court of Appeal just delivered, my take is that as a professional, and in fairness to the learned justices, this dictate that comments on examination of its legal propriety or otherwise thereof cannot reasonably be carried out except and until the final decision is made.”