by Rachel Ogbu

Following the release of Hamza Al-Mustapha and Lateef Shofolahan, accused of masterminding the killing of Kudirat Abiola, her son, Lekan Abiola, has expressed disappointment over Friday’s Appeal Court judgment, which upturned the death sentence

According to reports, the Court of Appeal sitting in Lagos had earlier on Friday discharged and acquitted the former Chief Security Officer to the late Gen. Sani Abacha (Al-Mustapha) and Shofolahan, an ex-aide to the late Kudirat.

“I pray that God will forgive my mother and I know that my mum and dad will definitely get justice; maybe not in Nigeria, but I’m sure that Allah will give them justice where they are,” Lekan said.

“The Appeal Court only completed the work of other courts before it that have played roles in scuttling the family’s quest for justice in this matter. They finished the job, but they weren’t the ones who started it.”

“We had seven or so defendants before now with confessions of the roles they played in the death of my mother; there was Mohammed Abacha, Banabas Jabila aka Sgt. Rogers, James Danbaba, Lateef Shofolahan, Rabo Lawal and others. Everybody said the role they played; the one who did the shooting; the one who drove; the one who arranged for the car that was used when they got to Lagos from Abuja; the people in the room when the order to kill my mother was given. All the seven started the case, but the Supreme Court started the whole thing when it said that Mohammed Abacha had no case to answer.”

[READ: Just In: Hamza Al-Mustapha ‘discharged and acquitted’ of murder by Appeal Court ]

The Punch reports:

The appellate court had dismissed the judgment of Justice Mojisola Dada of the Lagos High Court, which sentenced both men to death by hanging, after accusing the judge of being “stroked to secure a conviction by all means.”

But the younger Abiola told Saturday PUNCH on Friday that he was “disappointed, but not particularly surprised by the judgement.”

According to him, the Abiola family would still have been disappointed even if the death sentence had been upheld by the Appeal Court.

He said, “One after the other, the cases were dropped and it was down to the remaining two. Where are the others? The fact that only two of them were convicted shows the rot in the judicial system. Even if the court had upheld the death sentence, we still wouldn’t have got the justice we sought. Already, most of those involved had been freed.”

Reacting to the assertion that military officers cannot be liable for crimes committed while carrying out orders from a superior officer, Abiola said military law also recognised illegality and had made provisions for such scenarios.

He argued that junior military officers get punished abroad for criminal offences carried out under direct order from a superior boss.

He said, “It has been proven that even in the military, you are not bound by law to obey an illegal order. If a human being asks you to do something, you have to ask yourself if it’s a legal order.

“After the World War II, German officials involved in war crimes, who claimed to be following orders before an international tribunal in Nuremberg, were found guilty and hanged.”

Abiola also expressed concern about the general situation in the country, saying that many Nigerians would be silently facing a fate similar to that being faced by his family.

He said, “Only God knows how many Nigerian family members have been killed by the police or the army and could not get justice. If something like that can happen to my family, what about other families that people don’t know anything about?

He, however, said that the Abiola family had accepted the judgment in good fate as Muslims, adding that some credits should go the “high court judge that passed the initial (death) sentence on Al-Mustapha and Shofolahan.”

Also, a younger brother to the late MKO Abiola, Alhaji Mubashiru Abiola, told one of our correspondents that the judgement came to the Abiola family as a “big surprise.”

Although he declined further comment on the judgment, Mubashiru said the family would issue a statement on the issue after a meeting of all members.

Similarly, Kudirat’s daughter, Hafsat Abiola-Costello, in a text message to one of our correspondents on Friday, said the family would not want to make any hasty comment on the appellate court’s decision.

Her text message read, “Hello, the family will release a statement in the next few days. Thanks.”

The judgment of the appellate court came about 14 years after the appellants were first arraigned in 1999, with two others, for the murder of Kudurat, wife of the winner of the June 12, 1993 presidential election, Chief MKO Abiola.

In the two separate but unanimous judgments delivered on Friday, the Justice Amina Augie-led appeal panel discharged and acquitted al-Mustapha and Shofolahan of the murder charges for lack of evidence.

Lack of evidence was the same reason the Supreme Court discharged and acquitted son of the late Head of State, Mohammed Abacha, from the same case on July 11, 2002.

The fourth person, Rabo Lawal, who was, during Abacha’s regime, the head of Mobile Police Force Unit in Aso Rock, was also discharged and acquitted from the case on July 14, 2011, by Justice Dada in her ruling on a no-case submission, which he (Lawal) filed after the prosecution closed its case.

The all-female appeal panel held that both the charges of murder and conspiracy to murder preferred against the two men by the Lagos State Government were unsubstantiated.

The two other justices on the panel were Rita Pemu, who read the lead judgment, and Fatima Augie.

Pemu described the lower court’s judgment as “worrisome,” adding that it was based on principles strange to the nation’s criminal justice system.

“The evidence of the prosecution was so unreliable that no responsible court will base the conviction of an accused person on,” she said.

She held that the two star witnesses of the prosecution (PW2 -Barnabas Jabila aka Sgt. Rogers and PW3, Mohammed Abdul aka Katako), having recanted their incriminating testimonies, the evidence given by them could no longer be relied upon.

“I wonder why the learned trial judge did not expunge the testimonies of PW2 and PW3,” Pemu said.

She said despite the evidence given by Jabila and Abdul, testifying that they were instructed to tell lies against the appellants, “the learned trial judge refused to concern her mind with the politics of the case. She allowed herself to be caught in the web of the conflict.”

Augie said in her supporting judgment, “The 326 pages cannot provide judgment where there is none.”

She said the judgment ought not to be too long “if the case of the prosecution was strong.”

According to Augie, the judgment being too long, the learned trial judge “strayed” into emotion and left the content of the matter while dwelling on the “shallow issues.”

She also wondered why the authorities “refused to prosecute Barnabas Jabila, who made a confession to have killed a person.”

On the testimony of the first prosecution witness, Dr. Ore Falomo, who was MKO Abiola’s personal physician, Pemu said the evidence given by him was immaterial, having only alleged that the bullet extracted from the head of the deceased was “uncommon one,” without any further proof.

Pemu said the bullet was never brought to court and that no ballistician report was tendered to corroborate Falomo’s claim that the bullet must have come from the Presidency and that Kudirat must have been killed by “a fifth columnist in government.”

“These questions are left unanswered by the prosecution,” Pemu said.

She said the incomplete testimony of the fourth prosecution witness (PW4), Ahmed Fari Yusuf, a retired Commissioner of Police, “goes to no issue” and as such, all the statements credited to the appellants, which were tendered through him, were all immaterial.

She said failure of the prosecution to present Yusuf for the defence to cross-examine after two trials-within-trial for 13 months to test the voluntariness of the statements “was an infraction to the rights of the appellants to fair hearing.”

As such, the court held that the three statements tendered as Exhibits A5, B1 and A6 had no “evidential value.”

The appellate court held that even if the appellants had actually committed the alleged crimes, nothing in the testimonies of all the four prosecution witnesses suggested so.

The court castigated the police for a “wishy-washy” investigation of the case, adding that the investigation of the Special Investigative Panel, set up on the case in 1999, was strange to the nation’s criminal justice system.

Pemu said, “PW2 and PW3 said that they were coerced to testify against the appellants and the incompleteness of the evidence of PW4 – all these leave so much to be desired.”

According to Pemu, the investigation conducted by the SIP on the case was a usurpation of the power of the police under sections 214 of the constitution as well as under the provisions of the Police Act.

She said, “The prosecution having failed to prove its case against the appellants, the appellants are entitled to being discharged and acquitted.

“Therefore the judgment of Justice Mojisola Dada of the Lagos High Court on January 30, 2012 is hereby set aside.

“The conviction and the sentence to death by hanging passed on Maj. Hamza Mustapha and Lateef Shofolahan for the murder of Alhaja Kudirat Abiola on June 4, 1996, is hereby set aside, and they are hereby discharged and acquitted.”

Shofolahan’s counsel, Mr. Olalekan Ojo, who led the defence team for both appellants at the lower court, said al-Mustapha and Shofolahan were victims of “a perverse judgment; luckless victims of politics of the South-West and luckless victims of politics at the top.”