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Al-Mustapha insists on documents to defend treason charge
By Emmanuel Badejo
THE trial of Major Hamza Al-Mustapha over an alleged plot to overthrow the Federal Government continued yesterday with the accused asking the authorities to discontinue the legal battle against him.
Al-Mustapha, a former chief security officer to the late Gen. Sani Abacha, and three others have been charged for the offence. Al-Mustapha and two others were on October 22 arraigned before Justice Dan Abutu of the Federal High Court, Lagos.
The fourth accused person, Commander Yakubu Indanabo, is reportedly on the run and was consequently dropped from the charges of treason and treasonable felony.
The two others on trial over the alleged plot to overthrow the administration of President Olusegun Obasanjo are Lt. Col. Mohammed Ibn Umar Adeka and a civilian, Mr. Onwuchekwa Okorie.
At the Federal High Court, Lagos, where he continued his defence yesterday, Al-Mustapha renewed his request for the Federal Government to produce some documents which he claims are fundamental to his defence.
He argued that it would be wrong for the state to continue with the trial without producing the documents that are central to the case and are allegedly in possession of the government.
Besides, the former Chief Security Officer wants government to produce the video clips recorded during the sitting of the Special Investigation Panel (SIP) which conducted the preliminary investigation into the allegation.
Al-Mustapha, through his counsel Mr. Olalekan Ojo, had filed an application in the matter seeking that the documents be produced.
Ojo then argued that for his client to properly defend himself, the government must furnish him with video recordings and some other statements made by some witnesses investigated by the SIP.
But in its reply, the prosecution denied the claimed video clips by the accused.
At that point, Ojo said there was a material variance in the positions being canvassed by him and the prosecution. He then moved an oral application for an oral evidence to be tendered in order to resolve the said variance.
But the judge, who also agreed that there was variance, said that it would be resolved at the hearing of the substantive suit. He then dismissed the need for oral evidence.
Justice Abutu then called on the defence counsel to continue his argument on the application seeking the documents.
At the resumed hearing yesterday, Al-Mustapha's lawyer said there was need to balance the conflicting interests.
He argued that during the balancing of the interests, the court should consider a number of factors which include:
- the extent or the degree to which the document sought to be produced may assist the defence;
- the need to prevent miscarriage of justice in the case;
- the need to allow the defendant to put forward a tenable case in the best possible light; and
- the gravity of the counts in the charge against the accused person.
Ojo then submitted that the legal position was that where the documents sought to be produced might assist the defendant, the balance was in favour of disclosure.
The defendant's lawyer, who debunked the claim by the prosecution that some documents were classified, said: "It is our humble submission that there would be a serious miscarriage of justice in this case if the documents sought are not produced by the prosecution."
He added: "Non disclosure of these documents would constitute an example per excellence of gross miscarriage of justice and abuse of the legal process.
"The legal position is that a witness cannot be cross examined on documents that are not before the court. Unless these documents are available the defendant will neither be able to cross-examine the prosecution on the content of such documents nor be able to lead evidence as to the content of the some document."
Ojo further said that if the government could not provide the accused with the documents it could make them available to the court, which will study them and thereafter decide whether they are classified or not, adding that if found otherwise, the court has the power to compel the government to produce those documents.
The defence counsel also said, "the mere information or opinion of the Federal Attorney General passed to the deponent to their counter-affidavits was too legally sterile to sustain the claim of state privilege, adding that "the present position of the law is that the view of the AG or any other state officer was not inclusive."
Giving reasons for government to give up on prosecuting Al-Mustapha, Ojo said: "If they cannot still produce those documents either to the accused or the court, they should forgo prosecuting the case."
Also, counsel to the second accused, Adeka told the court that he had filed a similar application. But the prosecution said it was not aware of that.
Further hearing is adjourned to December 2 and 3, 2004.
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