By Ikechukwu Nnochiri
ABUJA — A Senior Advocate of Nigeria and constitutional lawyer, Mr. Sebastian Hon, SAN, has described the recent secret trial and eventual death sentence that was passed on 54 soldiers by the military tribunal as unconstitutional, null and void.
He maintained that the trial and conviction should be assumed not to have taken place.
Hon, in a statement issued in Abuja yesterday, argued that “section 36(3) of the 1999 Constitution mandatorily requires all criminal trials to be conducted in public and not in secret.”
According to him: “The secret trial of these suspects, therefore, amounts to a gross violation of this mandatory constitutional provision.
“Let it be sounded out in crystal clear terms that section 36(3) of the Constitution falls under Chapter IV of the said Constitution, which in turn has guaranteed certain inalienable rights termed fundamental rights.
“Superior courts of record in Nigeria, including the Supreme Court, have held that these rights are above the ordinary laws of the land, in this case, including military laws and rules. See Randome-Kuti vs. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 SC; WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 at 304 SC and Essien vs. Inyang (2012) All FWLR (Pt. 628) 951 at 967 CA, etc.
“More important, the Supreme Court in the fairly recent case of Nigerian Army vs. Aminun-Kano (2010) All FWLR (Pt. 528) 1805 at 1832 SC held in emphatic terms that the fundamental rights provisions of the Constitution apply to all Nigerians, including members of the armed forces, who are also entitled to the protection of the guaranteed rights!
“It is in the light of the above that I submit on most firm grounds that the secret trial and conviction of 54 soldiers by a military tribunal is null and void on the ground that it infringes on section 36(3) of the Constitution. Be it noted that this subsection has specifically outlawed secret criminal trials by a “court or tribunal.
“A military tribunal, without any iota of doubt, is covered by these provisions.
“Finally, it will be idle to argue that failure by defence counsel to raise timely objection against the said trial will rob him of the opportunity to do so on appeal. In the first place, the right guaranteed under section 36(3) being fundamental, cannot be waived.
“Secondly, superior appellate courts of record in Nigeria have been consistent in annuling trials which offend the subsection, objection or no objection. See lavishly on this: Edibo vs. State (2007) All FWLR (Pt. 384) 192 SC, Onwubuya vs. Statw (2014) All FWLR (Pt. 742) 1700 CA and Okoro vs. State (2012) 1 SC (Pt. 1) 1 at 50.
“Head or tail, therefore, the trial, conviction and sentence to death of 54 soldiers by a military tribunal, in so far as it was done in secret, remains unconstitutional, null and void. I strongly believe the Court of Appeal will void the convictions.”