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Al-Mustapha, Birma, and Jonathan: Letter To Nigerian Judicial Council, By Adeolu Ademoyo

Adeolu Ademoyo

Dear Honourable Justice Aloma Mariam Mukhtar,

When leaders become rulers, they look our laws in the face and manipulate them.  At that point it is time for citizens to look to the custodians of those laws. Honourable Justice Mukhtar, you have been historically placed as one of the custodians of Nigerian laws, which are under attack from the Presidency, hence this public letter to you.

Few weeks ago, Friday July 12 2015, Major Hamza Al-Mustapha, the Chief Security Officer to General Sani Abacha, was granted judicial freedom. Al-Mustapha was part of the strike force under Sani Abacha that killed Nigerian citizens who defended the June 12 1993 elections annulled by General Ibrahim Babangida’s military dictatorship. Historians will corroborate this.

Besides those who survived with half lives and fractured families, either in Nigeria or in the Diaspora, the following publicly known Nigerians (among others) lost their lives under the guillotine of the strike force-Pa Alfred Rewane, Mrs. Kudirat Abiola, Bagauda Kaltho a journalist with TheNews Magazine. Mr. Alex Ibru and Mr. Abraham Adesanya narrowly survived the bullets of this death machine. The history of the use of bombs to kill fellow Nigerian citizens, which Nigerian terrorists –Boko Haram, MEND and those in the Niger Delta creeks have come to perfect, started with Al-Mustapha’s strike force under Sani Abacha’s dictatorship.

At that time, prominent Nigerian journalists, including Alex Kabba of TheNews magazine, fled. There are those in the Diaspora who live private lives and do not want to be mentioned nor associate with the country, Nigeria, given the moral sickness that has now  led to the judicial release of one of the main assassins of the Sani Abacha dictatorship-Hamza Al-Mustapha.

The Nigerian Federal Court of Appeal presided over by Hon Justice Amina A. Augie, with Hon. Justice Rita N. Pemu, and Hon. Justice Fatima O. Akinbami, as members are the judges who dispensed law in Major Hamzat Al Mustapha’s case.

Honourable Justice Mukhtar, this is where the Nigerian Judicial Council you head comes in. Immediately, Major Al-Mustapha was released, one Dauda Birma of the Northern Elders and Youth Forum visited Mr. Bamanga Tukur-the PDP Chairman in the PDP secretariat in Abuja.   Mr. Birma was once a minister of education under General Sani Abacha military dictatorship.

During his homage to Tukur, Birma publicly disclosed the subterranean extra –judicial forces behind the judicial release of Al-Mustapha.  From Dauda Birma’s public disclosure before the chairman of the ruling party-PDP-we know that Al Mustapha’s judicial release, which has been packaged, as law may have nothing to do with law.

Please hear Dauda Birma as he stood before Mr. Bamanga Tukur the PDP chairman: “I know how much the chairman has been working hard to get Al-Mustapha released. I know that someone who has worked with a former head of state and was incarcerated for 15 years cannot be released by mere pronouncements of the judiciary without the concurrence of the executive,” (See PREMIUM TIMES, July 26, 2013).

The following are facts. The ruling party, the PDP has not refuted Dauda Birma’s statement.  The presidency has not refuted it.  Without an open refutation of Dauda Birma, we are free to conclude that President Jonathan and the PDP Chairman-Mr. Bamanga Tukur influenced the judicial release of Al-Mustapha. And that is not law.

Honourable Justice Mukhtar, Mr. Dauda Birma’s statement is categorical and implies knowledge. In accounts of knowledge, which law and administration of justice rely on, there is a distinction between belief and knowledge. Dauda Birma did not say, “I believe.” Rather he said, “I know…” In other words he knows the political manipulation of law and justice-by President Jonathan (“the concurrence of the executive”) and Mr. Bamanga Tukur (the Chairman) that led to the judicial release of Al-Mustapha.

Permit me to inform that two accounts of knowledge justify my concern about Mr. Dauda Birma’s claim. And these should concern you as a judge and as the Chief Judge of the Federation.  First, to claim to know an event is to be justified in one’s belief in the occurrence of the event. Such justification could be anything from personal belief, to a reliance on the reports from those who witnessed the event. This is a non-African or western account of knowledge. Second, to claim to know is to directly perceive the event. In the second regard, one is a direct witness of the event and its unfolding. This is an African account of knowledge.

In their major book on African Epistemology, Professors Barry Hallen and Olubi Sodipo, two of Africa’s foremost philosophers, have documented these for us to rely on and use both in law and in the polity. Therefore, whichever way we look at it, these two accounts of knowledge must impel you and the Nigerian Judicial Council to step in to see how Dauda Birma’s knowledge claim has affected the face of law and justice in Major Hamza Al-Mustapha’s case.

Honourable Justice Mukhtar, the fact that we are in a democracy is what explains citizens’ perception of the judicial release of Major Al-Mustapha.  It is not the case that Nigerian citizens do not see a problem in that judicial freedom granted Al-Mustapha. However, the perception is that: “it is about law”. But Honourable Justice Mukhtar, I wish to note and you will agree with me that there are many traditions in law and justice. Two of these are legal positivism and natural law. The former looks at the formal side of law in its interpretation while the latter looks at the substantive and ethical side of law.

It is obvious that in the case of Hamza Al-Mustapha, the appeal court judges have decided to be swayed by a legal positivist angle-in other words law devoid of its ethical face and substance-in other words the brute law as the brute law.  And that may be understood in itself only if there is a consistency in adhering to it. But here Al-Mustapha’s case, there may not be consistency in adhering to the formality of law.

This is because for  “law as formal law” to have any meaning we must assume that, that same “formal law” must not have  been interfered with politically, otherwise it loses its nature as “formal law”. In other words, something X i.e. the political manipulation is now attached to the “formal law’.   That X is Mr. Dauda Birma’s voluntary public disclosure. Therefore, in view of this public disclosure, I am calling the attention of the Nigerian Judicial Council, through your honourable office, to the fact that the “formal face of law” that the Nigerian Court of appeal headed by Honorable Justice Amina A Augie used to judicially free Major Hamza Al-Mustapha has been injured because it might have been interfered with.  Coherence and meaning are lost. Anarchy reigns perhaps aided by corruption. You are therefore under the obligation of the same sense of law (as formal law) to investigate this.

The “formality of law” which has been used  in the case of Al Mustapha may have become inconsistent and meaningless.  And given the criterion of “formal law”, which the judges of the court of appeal relied on, this means that justice has not been dispensed in the case of Al-Mustapha. This is significant in the face of law for Mr. Birma voluntarily made his statement before the Chairman of the party –PDP-that produced the president of the republic. And Mr. Birma made that statement as a compliment to President Jonathan and Mr. Bamanga Tukur and not as an adversary. In other words, Mr. Birma did not make his statement under duress.

Based on this and given the need to see that justice has been properly and lawfully dispensed in the case of Major Al-Mustapha, in view of Mr. Birma’s public disclosure I ask that the following judges should be investigated by the Nigerian Judicial Council. They are Hon Justice Amina A. Augie, Hon. Justice Rita N. Pemu, and Hon. Justice Fatima O. Akinbami.

Honourable Justice Mukhtar, you are aware of the rabid corruption in the Nigerian judiciary. A Nigerian trained lawyer, Justice Joseph Wowo, the dismissed Acting Chief Judge of Gambia (a West African country) has externalized this Nigerian cancer. With due and sincere respect to you and Nigerian judiciary, if Mr. Dauda Birma’s voluntary public disclosure in the case of Major Al-Mustapha is factually true, then there is no formal and substantive difference between Justice Joseph Wowo’s case and Justice Amina A Augie and her colleagues’ case. Given that Mr. Birma is a Nigerian citizen who has right to what he said, how do we know that he is factually wrong if the Nigerian Judicial Council does not take the case up by investigating his case?

It is noteworthy that President Jonathan has said nothing about the judicial release of Major Al-Mustapha. It is legitimate to expect a statement on this given the controversial nature of the release and its meaning for the intersection of law and democracy. President Jonathan’s loaded sealed lips can be compared to President Obama on the Trayvon Martin/George Zimmerman case. The Tryavon Martin/George Zimmerman case intersects race and law in American democracy while the Kudirat Abiola/Hamzat Mustapha case intersects law and truth in Nigerian democracy.

Given the intersection of race/democracy in American politics, President Obama made a statement on the Trayvon Martin/George Zimmerman case while using such opportunity to calm frayed nerves. In dire historical situation when the country is on the edge, that is what a President as a non-partisan national symbol of state does. But President Jonathan has kept an ominous mum in our own case.  In view of Dauda Birma’s public disclosure that the “concurrence of the executive”(President Jonathan and the Presidency) and “the hard work of the Chairman” (Mr. Bamanga Tukur, the PDP Chairman) led to the judicial release of Al-Mustpaha, my question is: what does President Jonathan know about the release of Al-Mustapha-a case that intersects law and truth -which has made him keep an ominous and foreboding sealed lips?

If President Jonathan has kept sealed lips on this for self-serving political reasons, you as the Chief Justice of the Federation cannot afford to keep sealed lips. You are the face and symbol of law and justice in Nigeria.  Therefore, you are obliged to tell us how this “formal law” which has been used to free Hamzat Al Mustapha will also not be used to free Boko Haram, MEND, Niger Delta Creek terrorists and all Nigerian terrorists and human butchers from all parts of our country (North, South, East, West) who have murdered innocent Nigerians.

Hence, permit me to put this to you and fellow Nigerians. If Major Al-Mustapha’s judicial release is justified given the formality of law (a formality that has been impugned upon by Dauda Birma’s substantive disclosure), then we can no longer legally and morally object to the terrorism of Boko Haram, MEND and other Niger Delta creek terrorists. Given formal law, why waste the precious time of the nation hunting down and trying these terrorists? Given the formality of law, which was used to free Al-Mustapha, what then is the basis of Henry Okah’s guilt in the Abuja bombing if even in his own case he was physically outside the country during the October 1 2010 bombing?

Given  the “formal law” used to free Al-Mustapha why will the Nigerian military want to kill Abubakar Shekau of Boko Haram? In view of the formality and technicality of law, which freed Al-Mustapha, where is the link between Abubakar Shekau and the Boko Haram terrorism bombings?

And on a related issue about a corrupt judiciary which has salience for the judicial release of Major Al-Mustapha, it is a joke on Nigeria and Nigerian judiciary that while Nigerian judiciary could not convict Mr. James Ibori (just the way it has judicially freed Al-Mustapha), the thieving governor of Delta state, the same James Ibori was found guilty of the same of offense in Britain –an offense it was impossible to convict him for in Nigeria.

Here then lies the carcass of the soul of a country –Nigeria-set on the path of self destruction aided by a complicit judiciary. Here lies   the wretched and ugly soul of a country –Nigeria-that breaths and seethes in hypocrisy and falsehood.

So Honourable Justice Mukhtar, by virtue of your chair of the Nigerian Judicial Council, history has put this case on your shoulders. Will you let it go? Nigerian citizens call on you today to help judicially investigate and unravel Mr. Dauda Birma’s statement that Mr. Bamanga Tukur –the Chairman of PDP and “the concurrence of the executive”-President Jonathan -influenced the judicial release of Major Al-Mustapha.

A violation of law is a violation of the nation. If Dauda Birma’s claim is true, then the President and Mr. Tukur have violated our nation. The Nigerian Judicial Council you head must act judicially to investigate the judges, the prosecution, Dauda Birma, Bamanga Tukur and the presidency, unravel this and save the nation.

I commit this to you as I call the attention of the Nigerian Human Rights Commission and the Nigerian Bar to this call.

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