Saturday 13 July 2013

Hamza al-Mustapha: A tortuous, long walk to freedom

During the days of the infamous Nigerian military dictator, late General Sani Abacha, from November 1993 to June 1998, Hamza al-Mustapha, his Chief Security Officer, was as dreaded as he was revered.
Trained in intelligence operative,  he was involved in not less than  two investigations of coup attempts in Nigeria, on account of which he wormed himself into the heart of Sani Abacha, first, when the later was Chief of Army Staff (August 1985–August 1990), with  al-Mustapha becoming his  Aide-de-Camp.
When he was appointed the Chief Security Officer to the Head of State (CSOHS), al-Mustapha headed a Special Strike Force Unit during Abacha’s military regime (17 November 1993–8 June 1998), accused of engaging in extrajudicial killings of people seen as threats to the regime.
Both the previous regime of General Ibrahim Babangida and later Sani Abacha gave Captain (later Major) Hamza al-Mustapha exceptional power, considerably greater than other officers who were nominally his superior, on account of his efficiency in his designated undertakings.
Sequel to his appointment as the Chief Security Officer, al-Mustapha established a number of small security outfits recruited from the military and other security organizations, and trained in Israel and Korea. They were alleged to be responsible for much of the torture, killing and wanton looting during Abacha’s rule.
The sudden death of Abacha in 1988 cost al-Mustapha his prime job, as he was quickly removed from his job by the transitional regime established by General Abdulsalam Abubakar after Abacha’s sudden death in June 1998. That was the genesis of his trials. A Pandora’s box was opened.
In October 1998, he appeared in court with Abacha’s son, Mohammed, charged with the murder, in June 4, 1996, of Alhaja Kudirat Abiola, Kudirat Abiola, wife of the presidential candidate, M.K.O. Abiola, who died in jail July, 1998, along the Lagos/ Ibadan Expressway.
At the trial the killer, Sergeant Barnabas Jabila, admitted that he was merely obeying orders from his superior, al-Mustapha. Al Mustapha and four others were also charged with a 1996 attempt to murder Alex Ibru, publisher of The Guardian and Abacha’s Minister of Internal Affairs. Another charge was laid against al-Mustapha for the attempted murder of former Chief of Naval Staff, Isaac Porbeni.
While the trials proceeded, al Mustapha was detained at the Kirikiri maximum security prisons. While imprisoned, he was charged, on April 1, 2004, with being involved in a plot to overthrow the government. He was alleged to have conspired with others to shoot down the helicopter carrying the former president, Olusegun Obasanjo, using a surface-to-air missile that had been smuggled into the country from Benin Republic.
There was, however, a twist to the al-Mustapha saga, in 2007, following appeals for him to be released by four Nigerian dailies and former head of state, Ibrahim Babangida.
From 1988, it took 12 years in detention, trials and retrials, of al-Mustapha and his co-defendants before they were acquitted of most charges on December 21, 2010 (the co-defendants were former Lagos State Police Commissioner, James Danbaba; former Zamfara State military administrator, Jibril Bala Yakubu, and former head of the Aso Rock Anti-Riot Police, Rabo Lawal).
But it wasn’t yet uhuru for the perceived military smart-alec: he wasn’t still cleared of the alleged murder of Kudirat Abiola, for which he was being tried separately. It was becoming something of a roller-coaster. In May, 2011, it was rumoured that al-Mustapha had been murdered at Kirikiri, where he was being held, but it turned out to be just hoarse.  In May 2011, a judge deliberated whether to re-open the trial against al-Mustapha. Subsequently, the case was reopened in July, 2011.
The drama, thus, began for the umpteenth time. In the first two weeks of August, Hamza Al-Mustapha and his co-accused, Lateef Sofolahan, testified to their innocence of Kudirat Abiola’s killing. The case was adjourned by the court to November 10, 2011, when counsels to both parties were expected to file and adopt their written addresses. Sequel to the receipt of written submissions and hearing the addresses by the counsels to both parties on that date, Justice Mojisola Dada fixed the date of 30 January 2012 for delivering a judgment. Subsequently, the Lagos High Court sitting at Igbosere, convicted him over the murder of Kudirat Abiola, the wife of the acclaimed winner of the June 12, 1993 Presidential election, Chief Moshood Abiola. He was also sentenced to death by hanging
Those who thought that was the expected endgame for the embattled al-Mustapha could only wait for a belated rude awakening. From a venerated high to becoming a metaphor for ignominy, al-Mustapha was handed a second chance.
On April 29, 2013, the Court of Appeal, Lagos, heard an appeal filed by Al-Mustapha, and the former Personal Assistant to late Alhaja Kudirat Abiola, Lateef Shofolahan, who  appealed against a death sentence handed them by a Lagos High Court, on January 30, 2012, after they were convicted on a charge of masterminding the murder of late Mrs. Kudirat Abiola.
The court, presided over by Justice C.C Nweze, had fixed the date for hearing of the appeal, after counsels representing both convicts had applied for a regularization of their briefs of argument.
Counsel representing both appellants, Mr. Joseph Daudu (SAN) and Mr. Olalekan Ojo, moving in terms of their motion paper, had both applied for leave to file their appellants brief of arguments and serve same on the respondent.
The appellants contended that the trial judge erred in law by arriving at the conclusion that they conspired to kill Alhaja Kudirat on June 4, 1996.  They, therefore, prayed the Court of Appeal to entertain the appeal, set aside the judgment, and discharge them of conspiracy and murder. While al-Mustapha’s appeal was premised on four grounds, that of his co-convict (Shofolahan) was hinged on five grounds.
On June 10, 2013, the Court of Appeal reserved judgment on the death sentence hanging on al-Mustapha’s neck. At the court proceeding, the parties adopted their briefs and while adopting, Al-Mustapha’s counsel, Joseph Daudu (SAN) told the court that the evidence of PW2 and PW3 (Sgt. Rogers and Abdul) contradicted each other and the evidence of the prosecution did not support the charge brought against the appellant. “The testimonies of PW1 and 2 were inconclusive and contradictory, stressing: “The court drew inferences from these contradictory statements, to establish the guilt of the appellants.”
Daudu had submitted: “It is my submission that those inferences, upon which the court based its judgment, are merely political evidence formulated by the respondent and which the trial court ought not to have considered. “I, therefore, urge the court to allow this appeal and quash the judgment of the lower court.”
In his own submission, counsel to Shofolahan, Olalekan Ojo, also aligned with the submission of Daudu, arguing that the prosecution’s failure to call vital witnesses was tantamount to losing the case: “It is not permitted for any judge to reprobate and probate at the same time.”
The judge treated the evidence of PW2 and PW3 as corroboration for PW1. Citing the case of Ojutola vs Mabogunje, reported in 2013 (7) NWLR, Ojo said Justice Dada did not behave like a referee having no favourite, saying “there were only four prosecution witnesses and one of them, Dr Ore Falomo, knew nothing about the matter.”
He noted that bullet said to have been used by the appellants was not tendered at the lower court and the judge’s statement as regard PW2 and PW3, over issue of witness, was contradictory. In his response, counsel to the respondent (Lagos State), Mr. Lawal Pedro, told the court that there was evidence, especially under cross-examination, tendered at the lower court.
In the respondent’s brief of argument dated May 30, 2013, Pedro urged the court to dismiss the appeal, adding that the judge, whom the appellant accused of having a favourite, did not allow his witness to conclude before closing it.
Only yesterday, July 12, an Appeal Court sitting in Igbosere, Lagos, discharged and acquitted al-Mustapha of conspiracy to murder Alhaja Kudirat Abiola.
In a lead judgment read by Justice Rita Pemu and agreed by two other judges, Aminat Augie and Fatimah Akinbanmi, the Court of Appeal said the case was not properly investigated and that prosecution failed to prove its case beyond reasonable doubt.
Whereas the prosecution listed 12 potential witnesses, it managed to call only four witnesses:  Dr Ore Falomo, Sergeant Rogers, Dagama Katako and Ahmed Fari Yusuf.
Assessing the verdict of the lower court, the appellant court said the lower court did not evaluate properly the evidence brought before it, adding that the ballistic expert report was not tendered before the lower court and that there were contradictions in the evidence of Sergeant Rogers and one of Katako who were prosecution witness two and three.
Also, it faulted that the fact that the special bullet said to have been extracted from the head of the deceased woman was not tendered as exhibit in court, as police took away the bullet and never returned it.
Besides, the evidence of Ahmed Fari Yusuf was adjudged to be unreliable, as he did not show up again in court for him to be cross-examined, which is  against the law of fair hearing, according to the appellate court.
Considering the totality of the evidence before the court, nothing was found linking al-Mustapha with the killing of Kudirat Abiola, as he was not the one who pulled the trigger that killed Kudirat Abiola. Similarly, the late Kudirat’s aide, Alhaji Lateef Sofolahan, was discharged and acquitted on similar grounds.
For al-Mustapha, it was, indeed, a long, tortuous journey to freedom.

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