But the trial of the soldiers confirmed that the military indeed viewed the action of the soldiers as mutiny. A total of 18 soldiers were arraigned on charges of criminal conspiracy, mutiny, attempt to commit murder (shooting of the vehicle of the GOC), insubordination to a particular order, insubordination and false accusation before the court martial presided over by Maj. Gen. C.C. Okonkwo last Monday evening. But 12 soldiers were found guilty of three of the most heinous charges and were therefore sentenced to death by firing squad. The legal team of the convicts pleaded with the court martial to temper justice with mercy. While arguing that handing out the maximum sentence to the men would bring great hardship on their dependants, the lawyer pointed out that one of the convicted soldiers is the only son of his octogenarian widowed mother while another is the father of a five-month-old baby. In sentencing the men to death, the court martial had refused to be swayed by the pathetic stories of the family backgrounds of the convicted servicemen as put forward by their lawyer in his attempt to mitigate the sentence on them. The military also confirmed last week that it had already sent the GOC involved in the incident on retirement.

Different stakeholders and interest groups have been pleading for the reversal of the sentence on the soldiers since it was announced. The Nigeria Labour Congress, the Trade Union Congress and human rights lawyers pleaded for the pardon of the 12 soldiers. NLC appealed for clemency for the condemned men, especially since the sentence has not been approved by the Army Council, while the TUC argued that since the soldiers were protesting against internal sabotage of the operations against Boko Haram, their action should not be tagged mutinous. “We would also want to remind the Federal Government and the military leadership that in as much as the congress will not encourage revolt or disobedience to military authority, we will also not fail to reject and condemn the death sentence passed by the court martial on 12 soldiers protesting against the internal sabotage of the military in the ongoing war against the Boko Haram sect in the north-eastern part of the country,” said TUC.

Beyond the plea for clemency, lawyers are divided on the legal options available for the condemned servicemen to avoid facing the marksmen. Sebastian Hon, a senior advocate, argued that mutiny, the charge against the condemned men, is a crime viewed as very grave in the military globally because it can lead to chaos, breakdown of law and order and even overthrow of government. While he recognised that soldiers fighting Boko Haram had continued to complain about lack of appropriate equipment, they should not have taken the laws into their hands by attempting to shoot their commander. Nevertheless, the senior lawyer advised President Jonathan to exercise his prerogative of mercy under section 175 of the constitution to pardon the soldiers with a strong warning that any such action in the future would be met with appropriate punishment. He added that granting pardon to the men was necessary to ensure that the morale of their colleagues fighting the insurgents was not dampened.

Lawyer and human rights activist, Olisa Agbakoba, outrightly condemned the death sentence passed on the soldiers, insisting that the process through which the court martial passed the sentences on the soldiers was unconstitutional. Agbakoba, who said he had already asked lawyers from his chambers to approach the condemned soldiers over possibility of appealing the death sentence at the Court of Appeal, also argued that the offence for which the servicemen were tried and found guilty was undefined, contrary to Section 38(12) of the 1999 Constitution. He also argued that the process which allowed the military to initiate the process of trial of men it accused of committing one infringement or the other was against the principle of natural justice. Agbakoba, who revealed that he had in the past represented a number of soldiers being tried at court martial, said he has always argued that a process that allows the commander to appoint the investigator, the court martial president, and members and the judge advocate, is contrary to all principles of natural justice. “The basis of justice is that everybody who has the power to decide has a duty to act fairly. Without prejudice to the offence, whether the person is guilty or not, he is entitled to a fair trial. The Army Act that defines the work for the court martial system is unconstitutional because the basic offence contained in the Army Act is that you are charged for an offence said to be prejudicial to service discipline,” said Agbakoba.

“That is what the law says–conduct prejudicial to service discipline. But conduct prejudicial to service discipline is an undefined offence contrary to Section 38(12) of the Constitution and the court has said that offences must be defined,” he added.

While acknowledging the seriousness of the offences levied against the soldiers, human rights activist and lawyer, Femi Falana, SAN, argued that the servicemen deserved to be pardoned because of the circumstances of their action. The Lagos-based lawyer also said it was wrong to charge the soldiers under Section 52(1) of the Armed Forces Act Cap A 20 Laws of the Federation of Nigeria, 2004 as they did not kill their GOC, though they shot at his car. This, according to him, amounted to attempted murder which does not attract death penalty. He therefore argued that the the 12 convicts should have been charged under Section 52(2) of the Armed Forces Act, which provides for life imprisonment.

Falana also noted that before the shooting incident, soldiers at the Maimalari Cantonment had complained of insufficient ammunition, food and allowances, a fact which he wanted the Army Council to take into consideration in commuting the death sentence to life imprisonment. The legal practitioner however argued that if the death sentence of the Maiduguri 12 is confirmed by the Army Council, the convicted soldiers have the option of taking their case to the Court of Appeal. Falana argued that the appellate court is likely to follow its decision in the case of Yussuf & 21 Ors v Nigerian Army (2003) 36 WRN 68 wherein the sentence of life imprisonment passed on the appellants who had rioted at the Cairo Airport in Egypt was quashed.

Speaking in the same vein, Fred Agbaje said the soldiers were not barred from appealing the death sentence on them by the Armed Forces Decree. Agbaje also argued that the soldiers could go to the Court of Appeal, where the judgment of the court martial would be subjected to judicial scrutiny and review as there was nothing in the Armed Forces Decree that can override the clear provisions of the 1999 Constitution, particularly sections 6 and 36, dealing with judicial powers and fair hearing. This magazine however gathered that the death sentence on the soldiers is meant to send a strong message and arrest what is regarded as the burgeoning indiscipline and cowardice among the troops.

A senior military officer told this magazine last week that the service was concerned about the increasing unwillingness of the troops to fight during confrontation with Boko Haram insurgents. The officer said the refusal of soldiers to fight and even abandoning their weapons as they run away when confronted by the insurgents is now the major problem confronting the military in the war against terror. According to him, the recent shooting of Lt. Col. Adeboye Obasanjo, the son of former president Olusegun Obasanjo, and some other officers happened when their troops deserted them and ran away during a fire fight with Boko Haram militants. This magazine also gathered that the leadership of the Army was greatly embarrassed when wives of the men of the 7th Division about a month ago frustrated a planned expedition to liberate Gwoza from the Boko Haram insurgents who had taken over the town and declared it a caliphate.