The Tudun Biri Tragedy
While Nigerians remain grateful to our Armed Forces, for constantly risking their lives in their efforts to keep Nigerians safe, the inexcusable bombing by military drones of innocent civilians in Tudun Biri, Kaduna State on December 3, 2023 (TB Tragedy), is definitely one bombing too many. Over 80 people, including the elderly, children and women were killed, while about 71 were admitted to the hospital for treatment of injuries, ranging from minor to major, with one death already recorded at the Hospital.
I seize this opportunity to express my heartfelt condolences to the people of Tudun Biri, on this avoidable tragedy. I say avoidable, because it is obvious that not much was learnt following the unfortunate incident which occurred in Kalabalge, Rann Town, Borno State in January 2017. I covered this incident in my piece of 24/1/2017, “The Kalabalge Tragedy”. Nothing came out of the Probe launched by the House of Representatives into that accident then, and it is unlikely that anything will emerge from the Probe that the President and Commander-in-Chief of the Armed Forces, HE Bola Ahmed Tinubu, GCFR (C-in-C) has ordered into the TB Tragedy if the usual lethargic pattern of Probes and Inquiries is followed, unless the C-in-C insists that the Probe is done according to global best practices, meaning that for one, other bodies must be invited to join the Investigation Committee instead of leaving it solely to the Armed Forces. See Section 14 (2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), on the primary purpose of Government being security and welfare of the people.
An Error too Many: Could it be Lack of Training?
Even though it has long been established that ours is not a country that is strong on Government accountability to the people on any issue (see Section 6(6)(c) of the Constitution particularly), this time at least, the new Chief of Army Staff, Lt General Taoreed Lagbaja owned up to the mistake of the Army in this particular incident and rendered a public apology, unlike the various coverups that we saw in the past, for instance, during the time of Lt General Tukur Buratai and Air Marshal Sadique Abubakar, in the administration of former President, Muhammadu Buhari, GCFR.
I’m sure we still recall the Kalabalge Tragedy, when the Air Force dropped three bombs on an IDP Camp apparently located only 200 metres away from the Military Camp Headquarters in that area, allegedly mistaking it for a Boko Haram hideout; at least 100 innocent civilians were killed in that regrettable outing. How could anyone have mistaken a civilian camp located so close to a Military one, as a Boko Haram hideout? Nor have we forgotten how the Army opened fire on innocent, defenceless, unarmed youths during the #EndSARS Protest at the Lekki Tollgate in October 2020. Initially, the Army had denied being at the Lekki Tollgate, then admitted to being there, but firing only dud bullets, until CNN outed them with its investigation, tracing the origin of the bullets fired at Lekki to Serbia where the Nigerian Army had purchased bullets. Indeed, Lt General Lagbaja has been more honest by owning up, instead of covering up like his predecessors. Even though the Kalabalge Tragedy was suspicious and clumsy, in that the Army bombed their neighbours, the IDP Camp just 200 metres away, literally next door to them, at the time, I don’t remember any group of Lawyers from any set of States threatening to sue the Government because of that incident. I was therefore, surprised to see the headline of one of the Dailies on Sunday, reporting that 600 Lawyers from the 19 Northern States would be suing the FG for the TB Tragedy. We must refrain from ethnicising and politicising everything, especially such a sad and unfortunate incident like this.
Nevertheless, we must appeal to Lt General Lagbaja and the Chiefs of the Air Force and Navy, to review the credentials and records of those who are in charge of these sensitive duties, and ensure that they are in their positions because they are the brightest and the best for those roles, and not just because of nepotism and tribalism etc. We must also interrogate the level of training given to those who operate these equipments, as it has been alleged that in Nigeria, for example, in Government Hospitals, in the past, it wasn’t unusual to see state-of-the-art equipment still in its packaging, abandoned for years, rotting away because the Staff hadn’t received the requisite training on how to operate the machines! Could this also be the case with some of the Operators of military equipments, like Jets and Drones? That they lack adequate training?
Of course, we know that even the best make errors, but when it is a similar error that is made repeatedly, then it is a cause for concern. A few weeks before the Kalabalge Tragedy of January 2017, there was allegedly another mistake incident on IDPs in Gamboru Ngala – military troops mistakenly killed about 30 IDPs who went to collect firewood in a nearby forest to cook. Also, in September 2021, about 20 Fishermen were said to have been mistakenly killed in an air strike aimed at Jihadists, in Kwatar Daban Masara in the Lake Chad area.
Recently, someone mentioned to me that one of the heads of a Government establishment, can barely read or write! I found it difficult to believe. How did someone who is more or less illiterate, get into that establishment in the first place, let alone rise to the helm of his career, when they have to sit exams at various levels in order to be promoted?! Your guess is as good as mine! Why are we shocked anyway, since we know that Section 318 of the Constitution permits people with Primary School education to hold top governance positions! But, surely, for specialised roles in the Armed Forces, Personnel should be properly trained. Lt General Lagbaja and his colleagues in the Airforce and Navy must take a more critical look at what could be termed as life saving or life taking operations and their Operators to ensure they are qualified, in order to prevent any other unfortunate and avoidable occurrence in the future.
I watched an interview on our Arise TV’s Morning Show last Wednesday, in which the Kaduna State Chairman of Christian Association of Nigeria, Reverend John Hayed commended Lt General Lagbaja, for his honesty in owning up to the Army’s error and rendering an apology for same, unlike the cover-ups we have seen in the past. The only way that General Lagbaja’s sincerity can be affirmed, is for him to ensure that there are meaningful outcomes from the Probe into the TB Tragedy, and going forward, only properly trained people are allowed to man such sensitive equipment.
Offences
1) Manslaughter or Culpable Homicide Not Punishable With Death?
The first thought that may come to the mind of a Lawyer, is whether the TB Tragedy constitutes the offence of Manslaughter. In Egbirika v State 2024 4 N.W.L.R. Part 1398 Page 558 at 578 per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, the Supreme Court defined Manslaughter thus: “an unintentional killing of a human being. Such a killing is not premeditated but accidental, in the sense that it was not intentional”.
The TB Tragedy situation is different, because the drones were actually meant to kill, so in a way, it was premeditated, only that they hit the wrong target. Section 192 of the Kaduna State Penal Code Law 2017 (as amended) (KSPCL) provides that in a case where the killing is premeditated but an unintended victim is murdered instead, the culpable homicide caused by the perpetrator will be the same as if it was the person that was originally intended that was the one who was killed. However, the difference in the TB Tragedy and Section 192 of the KSPCL, is that though the killing was premeditated, it was for a lawful purpose – to annihilate terrorists who have been on the rampage killing and maiming innocent Nigerians. In a bid to protect Nigerians, there was an error on the part of the Army, and innocent civilians were killed and injured instead. This doesn’t really fit into the definition of Manslaughter.
2) Negligence
It appears that the description that suits the TB Tragedy more, may be the Tort of Negligence. In Anyah v Imo Concorde Hotels Ltd (2002) LPELR-512(SC) per Umaru Atu Kalgo, JSC the Supreme Court held inter alia that Negligence arises when a legal duty owed by the Defendant to the Plaintiff is breached. Similarly, in I.M.N.L. v Nwachukwu 13 N.W.L.R. Part 891 Page 543 at 560 per Dahiru Musdapher, JSC (later CJN) the Supreme Court held that “Negligence is a breach of duty to take care. A duty to take care can be imposed by law or can be created by contract or trust”. And, in U.T.B. v Ozoemena 3 N.W.L.R. Part 1022 Page 448 at 464-465 per Umaru Atu Kalgo, JSC, the Supreme Court held inter alia thus: “Negligence has been defined in Oxford Advanced Learner’s Dictionary 5th Edition as “lack of proper care and attention, careless behaviour”.
In an action for Negligence, a successful Plaintiff is awarded damages. In NEPA v Auwal 2011 5 N.W.L.R. Part 1241 Page 571 at 592-593 per John Inyang Okoro, JCA (as he then was), the Court of Appeal held that to be awarded damages, a Plaintiff “must show the existence of a duty of care by the Defendant, the breach of that duty and the damages suffered as a result of that breach”.
We notice this breach of duty of care on two levels, in the TB Tragedy and previous incidents like the Kalabalge Tragedy; firstly, if the Operators of the equipment used to mistakenly kill innocent civilians were not properly trained in their usage, before allowing them to go on the various unfortunate expeditions like the Kalabalge incident, then that is negligence on the part of the Armed Forces, as the legal duty of care to Nigerians was breached, since our lives were put in danger by allowing the unqualified or inexperienced to operate machinery whose purpose is to take lives. Secondly, not being cautious enough before hitting targets, is also a breach of duty of care constituting negligence. Article 48 of the UN Additional Protocol 1 to the Geneva Conventions which Nigeria is a signatory to “requires that parties to a conflict distinguish between civilian persons and objects on the one hand, and combatants and military objectives on the other, and that they direct their operations against military objectives (persons and objects) only”. In the TB and Kalabalge Tragedies for example, the military objectives should have been the terrorists and their objects only, not innocent civilians. ‘Mistaken Target Identification’, which is what occurred in these two tragedies, is negligence and careless behaviour. According to the Protocol, it is mandatory that precautionary measures are taken in a conflict, before launching an attack on the enemy. One of these measures, is “to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection, but are military objectives within the meaning of Paragraph 2 Article 52 and that it is not prohibited to attack them”. It is prohibited to attack civilians and civilian objects, like schools, hospitals, markets and so on. This duty of care was obviously not taken, and resulted in the death of 80 or more in the TB Tragedy, and injury of others.
Conclusion
The damages occasioned by the Army on the people of Tudun Biri who were gathered for Maulud is obvious, consequent upon the deaths and injuries in that incident. The doctrine of Res Ipsa Loquitur, that is, the thing speaks for itself is applicable here – that the occurrence of the TB Tragedy speaks for itself, and is sufficient to prove the negligence on the part of the Army, thereby shifting the burden of proof from the Plaintiff to the Defendant, in this case the Defendant being the Army that has already pleaded error and accident. See NEPA v Auwal (Supra); C.S. & A.C. Ltd v Mandilas and Karaberis 1969 6 N.S.C.C. Page 306 at 311 per Atanda Fatai Williams, JSC (later CJN). Again, to affirm the sincerity of the apology of Lt General Lagbaja, the people of Tudun Biri must be adequately compensated for their losses, though life cannot be quantified in terms of monetary compensation.
Finally, I find the attempt to politicise this unfortunate incident by some mischievous people, shameful and ludicrous, especially as they didn’t tow the same line when there was a series of military mistakes in the aforementioned past tragedies. Hopefully, this is the last we will see of these unfortunate incidents.
