Opinion: Al-Mustapha and the unnecessary public outburst

by Gabriel Okoro

Hamza Al-Mustapha

It is not in doubt, like the appellate court rightly observed, that someone “pulled the trigger” that killed the democracy heroine, but the big question remains: who did it? This was the question the poor prosecution of the case denied the entire country of knowing! 

The public outcry that greeted the recent Court of Appeal decision on the former Chief Security Officer to the late Sani Abacha, Major Hamza Al-Mustapha’s murder trial is completely unmeritorious. We should salute the courage of their Lordships for looking dispassionately at the fact of the case and not bowing to the public sentiments, prejudices and pressures, rather than pooh-pooh the judgement.

The duo of Hamza Al-Mustapha and Alhaji Lateef Shofolahan were charged in 1999 with conspiracy and murder over the death of the Amazon of the nation’s democracy, Alhaja Kudirat Abiola whose brutal assassination took place in 1996. Mustapha and Shofolahan had been in the Ikoyi Maximum Prison since then. In 30th January, 2012, a Lagos High Court presided over by Justice Mojisola Dada convicted the duo of the said murder and subsequently sentenced them to death by hanging. Their appeal against the judgement at the Court of Appeal was sustained, hence their acquittal and discharge.

But sad enough, since that judgement, so many public analysts, including legal practitioners, have taken over the media to lambast the appellate court for “perverting” the cause of justice. It is most disturbing that the legal minds who ought to educate the public on this case could so join the foray to criticise the decision. The question to be asked is: did the appellate court do justice under the circumstance, having regards to the evidence available to it and the philosophies and principles guiding criminal procedures in our jurisdiction and elsewhere? I will answer in the affirmative, and this is on the ground of the old established legal maxim that it is better to set nine criminals free on want of evidence than to convict one innocent soul.

It is trite law that under criminal proceeding, the charge against an accused must be established beyond reasonable doubt and the burden of doing that lies solely on the Prosecution. It is not for an accused to prove his innocence. See Section 135 (1) (2) Evidence Act, 2011. Justice Dada, unfortunately, appeared to have  shifted this burden on the accused. The appellate court discovered so many contradictions in the testimonies of the Prosecution Witness 1 (Barnabas Jabila, a.k.a Sergeant Rogers) and Mohammed, a.k.a Katako. The duo recanted their earlier admission that they were trained to kill the deceased. They told the trial court that they were induced by the government authorities to implicate the accused. But curiously, the court went ahead to admit their testimonies in evidence and relied heavily on them to convict the accused. This is indeed strange and a travesty of justice. In Almu v. The State (2012) 10 LRCNCC pg 292, the apex court held that “if there are contradictions in the prosecution, and the contradictions materially affect the charge, doubt will be created and the benefit of which must be given to the accused person in which case he will be discharged”. To further amplify this principle, their Lordships, in Oforlete v. State (2001) NWLR (Pt.68)1 P415 noted that “it is a settled law that in a situation where the court entertains EVEN THE SLIGHTEST OF DOUBT , that doubt should be resolved in favour of the accused persons” (Emphasis, mine).

Another aspect of the case that should give us concern is the so-called investigation carried out by the security agents. As their eminent Lordships elegantly noted, the “wishy-washy” manner in which investigation was carried out in this case leaves much to be desired. Pray, how could a “special bullet” be extracted from the deceased brain yet such was not tendered as exhibit in the case by the Prosecution? Again, why call a doctor without calling a Ballistician to examine the said bullet? More worrisome was the fact that the said bullet “disappeared” shortly after investigation! This, to put it more elegantly, smacks the professionalism and competence expected from an investigator. Similar thing is playing out in the late Funsho Williams’ murder trial, where the Prosecution told the court that a vital exhibit had been lost to power outage. Yet the sudden disappearance of PW4, Ahmed Fari, a Police Commissioner in charge of budget when it was time for the defence to cross-examine him speaks volume. The trial court by so doing denied the accused their inalienable right to fair hearing as enshrined our extant laws.

In another breadth, it appeared the trial judge was overwhelmed by the “politics” surrounding the deceased death, hence the court tactically descended on the arena of justice in the case. The Court of Appeal deplored this strange attitude in a strongest term, while upturning the lower court conviction. Their Lordships noted that the trial Judge “did not evaluate the evidence before him”, adding that the trial court was “stroked to secure conviction by all means”. The attitude of the trial court towards the accused, ab nitio, suggested a likelihood bias. The judge was reported to had once  said “… I don’t know why government still keep these criminals”. The use of “pitiful cowards” in his judgement is an indication that the trial court robbed itself off the opportunity to dispense justice in the case without fear or favour. It appeared the trial court compromised S.36 (5) of 1999 Constitution (as amended) which gives an accused benefit of innocence until contrary is proved.

It is not in doubt, like the appellate court rightly observed, that someone “pulled the trigger” that killed the democracy heroine, but the big question remains: who did it? This was the question the poor prosecution of the case denied the entire country of knowing! We are all losers-the society, the accused and the deceased family-in this case. It is completely an injustice on the accused that after 14 years behind the bars, it has been found out that they are innocent of the offence. It is also an injustice on the deceased family that the killers of their loved one could not be found 14 years after. A greater injustice on the society that both public fund and time have been wasted without corresponding result on this case.

It is must be clearly stated that until we tighten up our loosed investigative and judiciary system and make them more proactive, the criminals will continue to work tall free in the society. They will continue to maim us and get scot free. It is, therefore, my candid submission that we should seize the opportunity as well as the controversies which this case have created to go back to the drawing board with the view of sanitising our criminal proceeding system.


Gabriel Okoro is a Lagos based Legal Practitioner


Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

One comment

  1. Great piece! Intense food for thought.
    I must commend you Sir, 'cos it's not easy to judge a matter without bias especially in our society conssidering what we Nigerians have been through…Only pray that our teeth will be able to chew and swallow this bitter truth. Well done Sir.

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