In a petition addressed to the president, Mr. Falana said the findings of the Arms Procurement Panel, instituted by Mr. Buhari, had vindicated the soldiers.
Last year, Yussuf Buratai, the Chief of Army Staff, ordered the immediate reinstatement of about 3,000 soldiers dismissed by the previous administration over the same offence.
Mr. Buratai also commuted the death sentences passed on 66 out of 70 condemned soldiers to 10 years imprisonment.
“Since the soldiers who have been reinstated and the scores of others who were convicted by the courts-martial were alleged to have committed the same ‘offence’ General Butarai ought to have treated them in like manner,” Mr. Falana, a Senior Advocate of Nigeria, stated in the petition dated January 15.
“In other words, all the convicted soldiers should equally have been pardoned and reinstated without any conditions.
“More so, that the Arms Procurement Panel instituted by Your Excellency has confirmed that the sum of $2.1 billion and N643 billion set aside for the purchase of equipment for counter insurgency operations was allegedly diverted by the immediate past National Security Adviser, Col. Sambo Dasuki and his several accomplices.
In urging Mr. Buhari to exercise his “prerogative of mercy” in favour of the convicted soldiers, Mr. Falana said the president himself had admitted in a BBC Hausa Service on December 28 that the soldiers who were convicted for mutiny were ill-equipped.
“In urging Your Excellency to pardon the convicted soldiers we are not unaware of the belief in military circles that a protest by members of the armed forces constitutes mutiny,” Mr. Falana said.
“As the belief does not represent the current state of the law we are compelled to draw Your Excellency’s attention to the case of Cpl Oladele & 22 Ors v Nigerian Army (2003) 36 WRN 48.
“In that case the appellants who were injured in the ECOMOG peace keeping operations in Liberia were flown to Egypt for medical treatment. On the day they were to return to Nigeria, they protested violently at the Cairo Airport over the non-payment of their medical allowance. Upon their return to Nigeria they were charged with mutiny before a court-martial which convicted and sentenced them to life imprisonment.
“However, the conviction and the sentences passe
‘Mutiny is a criminal offence of a serious dimension. The pieces of evidence that l reviewed have not shown that the appellants disobeyed any order deliberately nor did they use any violence. If anything at all, all they did was to protest the non – payment of their estacode. Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier travelled with some estacode and was emphatic that the Appellants were not prohibited but there was no express provision for the payment of estacode to them.'”
Mr. Falana argued that the convicted soldiers’ demand had found justification in the alleged diversion of funds meant for the purchase of arms to combat insurgency.
”No doubt, General Butarai identified the gross injustice meted out to the soldiers,” he said.
“But instead of quashing the unjust findings of the courts-martial he merely reduced the death sentences passed on 66 out of 70 condemned soldiers to 10 years imprisonment.
“In order to ensure that justice is done in this case we urge Your Excellency to pardon all members of the armed forces who were convicted by military courts for demanding for adequate weapons to fight the Boko Haram terrorists.”