Critical analysis of the military justice system in Nigeria

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CRITICAL ANALYSIS OF THE MILITARY JUSTICE SYSTEM IN NIGERIA

ABSTRACT

One of the issues that has continued to generate controversy among the bar, the bench and international and local human right activists is whether the Military Justice system is or should be subservient to the rule of law. The legal implication of the military justice system derives from sections 1 (1), 1 (3), of the Constitution of the Federal Republic of Nigeria 1999, Cap C23 laws of the federation; Armed Forces Act, Cap C20 laws of the Federation 2004 and other subsidiary legislations. Nigerian Military Justice System is machinery put in place to ensure justice and discipline in the Armed Forces as well as enforcement of law. The military commanders be it at summary level or court martial play important role in the administration of military justice in any military jurisdiction. The present the entry point into the military criminal justice system, this is because the commanders at justice system and the military justice system are the commanders. One cannot divorce one from the other. This research examines critically the military justice system in Nigeria vis-à-vis it’s conformity with the enabling laws as regards its application strictu sensu. To identify challenges militating against its awards and findings on appeals at High courts and court of Appeal respectively. This research observes that most trials conducted and its attendant awards did not conform to the enabling laws and the rule of law. In view of these, most of their awards and findings have been quashed by the appellate courts. Mostly for lack of observance of fair hearing, unwillingness to abide by the rule of law, inadequate knowledge of the law, and unwillingness to be guided by the Directorate and legal officers of legal services even down to battalion level. Consequently, this work recommends amongst other things that the commanders, ASA inclusive to always be mindful of the rule of law in dispensing justice and to always make use of the available legal officers by seeking legal guidance and advice from them when the need arises.

 

TABLE OF CONTENTS

TITLE PAGE i

DECLARATION ii

CERTIFICATION iii

ACKNOWLEDGMENT v

TABLE OF CONTENTS vii

LIST OF ABBREVIATIONS xi

LIST OF CASES xiv

LIST OF STATUES xvii

ABSTRACT xviii

CHAPTER ONE

INTRODUCTION 1

1.1 GENERAL BACKGROUND OF THE STUDY 1

1.2 STATEMENT OF THE RESEARCH PROBLEM 5

1.3 AIMS AND OBJECTIVES OF THE STUDY 7

1.4 SIGNIFICANCE/IMPORTANCE OF THE STUDY 8

1.5 RESEARCH METHODOLOGY 10

1.6. LITERATURE REVIEW 10

1.7 SCOPE OF THE STUDY 22

1.8 ORGANIZATIONAL LAYOUT 22

CHAPTER TWO

MILITARY JUSTICE SYSTEM 24

2.1 INTRODUCTION 24

2.2 CONCEPT OF RULE OF LAW 25

2.3
EVOLUTION OF MILITARY LAW IN NIGERIA …………………………………………………
31
2.4
DOCTRINE OF COMPACT …………………………………………………………………………………
35
2.5
PRELIMINARY PROCEDURES ………………………………………………………………………….
40
2.5.1
Arrest and custody …………………………………………………………………………………………
40
2.5.2
Investigation of Cases …………………………………………………………………………………….
43
2.5.3
Board of Inquiry and Regimental Inquiry …………………………………………………………
45
2.5.4
Military Police Investigation …………………………………………………………………………..
46
2.6
PRELIMINARY ISSUES FOR CONSIDERATION ………………………………………………..
47
2.6.1
Powers of Command and Punishments in summary trial …………………………………….
47
CHAPTER THREE

TRIAL AND POST TRIAL PROCEDURE ………………………………………………………………………
53
3.1
INTRODUCTION ……………………………………………………………………………………………….
53
3.2
TRIAL PROCEDURE ………………………………………………………………………………………….
54
3.2.1
Charge Sheet …………………………………………………………………………………………………
54
3.2.2
Preparation of defence ……………………………………………………………………………………
57
3.3
SUMMARY TRIAL …………………………………………………………………………………………….
61
3.3.1
Review of Summary Findings/Award ………………………………………………………………
64
3.4
COURT MARTIAL TRIAL ………………………………………………………………………………….
65
3.4.1
Pre-Trial Procedure ………………………………………………………………………………………..
66
3.4.2
Convening of Court Martial ……………………………………………………………………………
68
3.4.3 Membership ……………………………………………………………………………………………………….
69
3.4.3
Assembly and Swearing-in ……………………………………………………………………………..
70
3.4.4
Arraignment ………………………………………………………………………………………………….
72
3.4.5
Trial …………………………………………………………………………………………………………….
73

3.4.6
Decisions ……………………………………………………………………………………………………..
75
3.4.7
Findings and Awards ……………………………………………………………………………………..
77
3.5POST TRIAL MATTERS …………………………………………………………………………………….
78
3.5.1
Review and Revision of Court martial Proceeding …………………………………………….
78
3.5.2
Confirmation of the Trial ………………………………………………………………………………..
79
3.5.3
Powers of Confirming Authorities …………………………………………………………………..
82

CHAPTER FOUR

CONTENTIOUS ISSUES IN NIGERIAN MILITARY JUSTICE SYSTEM
……………………….. 85
4.1
INTRODUCTION ……………………………………………………………………………………………….
85
4.2
INITIATION OF LEGAL PROCESS BY SERVICEMEN …………………………………………
85
4.3
RESPONSE TO LEGAL PROCESS BY THE MILITARY ………………………………………..
88
4.4
REDRESS OF COMPLAINTS BY SERVICEMEN ………………………………………………….
90
4.5
APPEALS, ISSUES AND CHALLENGES ………………………………………………………………
94
4.5.1 The Reasons for Reversal …………………………………………………………………………………….
95
4.5.1.1 Judicial Pronouncements on Courts Martial Decisions ………………………………………….
98
4.5.1.2 Fair Hearing…………………………………………………………………………………………………….
98
4.5.1.3 Procedural Errors……………………………………………………………………………………………..
99
4.5.1.4 Jurisdiction ……………………………………………………………………………………………………
100
4.5.1.5 Improperly Drafted Charges…………………………………………………………………………….
102
4.5.1.6 Conviction Based on Insufficient or Irrelevant Evidence …………………………………….
103
4.5.1.7 Failure to Give Reasons for Finding ……………………………………………………………..
104
4.5.1.8 Failure to Conform to Post-Trial Procedure ……………………………………………………….
105
4.6
ISSUES AND CHALLENGES ……………………………………………………………………………..
107
4.6.1 Justice and Technicality …………………………………………………………………………………….
107

4.7 CHALLENGES 111

4.7.1 Inadequate Knowledge of Military Law and Service Knowledge 111

4.7.2 Attitude of Appellate courts to Court Martial 113

4.8 CONCLUSION 115

CHAPTER FIVE

CONCLUSION 116

5.1 FINDINGS AND OBSERVATIONS 116

5.2 SUGGESTIONS AND RECOMMENDATIONS 120

5.3 CONCLUDING REMARKS 123

BIBLIOGRAPHY 127

LIST OF ABBREVIATIONS
AA – Army Act
AFA – Armed Forces Act
AHQ – Army Headquarter
ASA – Appropriate Superior Authority
Capt – Captain
CFRN – Constitution of Federal Republic of Nigeria
CJ – Chief Judge
CM – Court Martial
CO – Commanding Officer
COA – Chief of Administration
Col – Colonel
COS – Chief of Staff
CPC – Criminal Procedure Code
DDALS – Deputy Director Nigerian Army Legal Service
DLS – Director of Legal Services
DPP – Director of Public Prosecution
GCM – General Court Martial

GOC – General Officer Commanding
IHL – Imprisonment with Hard Labour
J – Justice
JCA – Justice of the Court of Appeal
JSC – Justice of the Supreme Court
Lt – Lieutenant
Lt Col – Lieutenant Colonel
Maj – Major
MML – Manual of Military Law
MWO – Warrant Officer
NASMP – Nigerian Army School of Military Police
NATO – North Atlantic Treaty Organization
NBA – Nigerian Bar Association
NMF – Nigeria Military Force
QONR – Queens own Nigerian Regiment
RNA – Royal Nigerian Army
RP – Rules of Procedure
SCM – Special Court Martial

UK – United Kingdom
USA – United State of America
WAFF – West African Frontier Force

xiii

LIST OF CASES

Ajia v. Nigerian Army

AKono v. The Nigerian Army (2000) A14 N.W.L.R. (part 68) 318,

Anene v the State

Anyankpele v Nigerian Army (Supra)

Army v Col Umar Mohammed

Asake v. Nigerian Army

Awolowo v. Federal Minister of internal Affairs

Bashir Alade Shitta Bey v Federal Republic Service Commission

Colonel A. D. Karim v Nigerian Army

Colonel Clement Gami v The Nigerian Army

Corporal Shehu Maigari and 28 others v Nigerian Army
Dawkins v Lord Rockeby
Decision of Supreme Court in the State v. Madunmagu (1993) 20 NWLR p. 130 Ex Lieutenant Colonel Akinwale v. Nigerian Army 12 NWLR part 738 109.
Ex-Major NU Okoro v. Nigerian Army Council (2000) 3 N.W.L.R (part 647)77,
Gbasouzour v. Nigerian Army (2000) 2 C.L.R 230,

Grant v Gould

Heddos v Evans

Karim v the Nigeria Army

Karim v. The Nigerian Army (2002) 4 N.W.L.R (part 758) 717 at page 734 Lieutenant colonel A. Akinwale v The Nigerian Army

Lieutenant Colonel Ajia v. The Nigerian Army (unreported) (2004) 6 N.W.L.R (part 868) 166 at 183.

Lieutenant Colonel E. O. Anene v Nigerian Army

Lieutenant Colonel EO Enenev. The State (CA/1/14497 Jun reported.
Maclaughry v Denning

Magaji v. Nigerian Army (2004) 16 N.W.LE

Majekodunmi v. The Nigerian Army and Another (2002) 16, N.W.L.R (Part 794) 451

Majekodunmi v. The Nigerian Army and Another (2002). 16 N.W.L.R. (pt 794), 451, Major Iyela v Nigerian Army

Minere Amakiri v. R. M. Iwiowari

Oladele v. Nigerian Army

Oladele v. Nigerian Army (20o4) 6 NWLR (pt 868) 166

Orloff v. Wiloughby

Senator Abraham Adesanya v. President of Nigeria

Shemfe v Commissioner of Police

Squadron Leader Onyeukwu v. The State (2002) 12 N.W.L.R (part 681) 256 at 258.

Thompson org. v N. I. P. S. S.

Togunloju v. Nigerian Airforce

Tpr Oogwu Amos v Nigerian Army

Yakassai v. Nigerian Air force

Yekini v The Nigerian Army (2002) 2 N.W.L.R (part 777) 127.

Zuru v Chief of Naval Staff

LIST OF STATUES

Armed forces Act cap A 20 Laws of the Federal of Nigerian 2004 British Army Act.

Constitution of the Federal Republic of Nigeria

Rule of Procedure Army (1972)

Rule of Procedure Royal Air Force (1972)

Rule of Procedure Royal Navy BR11 (1972)

CHAPTER ONE

INTRODUCTION

1.1 GENERAL BACKGROUND OF THE STUDY

Over the ages, man has always lived together and interacted in one form or the other with one another. These interactions have become more complex and sophisticated with the evolution of modern societies and organizations. The competing demand for scarce resources and self-actualization which sometimes put man in confrontation with one another1

hence, the necessity for the regime of law to curb man‟s

existence, and ensure a peaceful society2.

Law, as defined by Black‟s Law Dictionary is a rule of law

conduct, procedure or custom, recognized by a community as binding or enforceable by authority3. Although, it is difficult to have a definition of law that is all encompassing and generally accepted, this definition has been adopted because it captures the essence of this research. There is no objective organization

1 Montesquieu P. Sociology of Man, (Novato, Presido Press, (1995) P. 15

2 Roscoe, Pound. The Law as a Social Engineering Tool ( New York, Osmond press 1960) p. 72

3 Black HC Blacks Law Dictionary Sixth Edition St Paul Minnesota. West Publishing Company (1979) P

864
or community that has no set or body of laws which regulate the conduct of the society and ensure the greatest good for the greatest number if strictly and impartially enforced. It also creates social stability and harmonious living.

The concept of justice is also closely related to the strict application of law. Justice has been defined by the Encarta Dictionary as Fairness or reasonableness especially in the way people are treated, decisions are made and Law enforced4 Thus, justice encourages the maintenance and administration of fairness, the impartial adjustment of conflicting claims and assignment of rewards and punishments5. The notion of justice is embedded in the administration of criminal justice system. The criminal justice system is the procedure saddles with the efficient application and just adjudication of all violations of the law in an organization6. It is concerned with the judicious and procedural application of law without fear, favour or affection.

4 Encarta Dictionary, (2007) edition P. 147

5Section. 36(6) of the Constitution of the Federal Republic of Nigeria. Cap C. 23 Laws of the Federation of Nigeria (2004).

6 Okey, Achike Groundwork of Military Law and Military Rule in Nigeria, Enugu. Fourth Dimension Publishers (1999), p. 55.

2

The rule of law on the other hand is the foundation for liberty and order7. It emphasizes the supremacy of due process. It respects all and allows us to organize our lives, plan our future and resolve disputes in a rational way; it also forbids arbitrariness. The rule of law ensures that the guilty should not go unpunished8.

One of the tenets of the rule of law is that a man must not be punished without due trial. However, some people are of the opinion that the rule of law is not compatible with the military system9. Dressler, SP quoting Charles De Gaulle, stated that, “Those who of their own volition joined the military have mortgaged their liberty and the right to choose where to go and what to do”.10 However, while the military tenets demand total obedience to orders, authority and hierarchy, it is not true that the notion of justice fair play and the rule of law are alien to the military. The problem lies in its

7 OPcit

8 Decision of Supreme Court in the State v. Madunmagu (1993) 20 NWLR p. 130

9 Chiefe, T.C „A Critical Appraisal of Court Martial Procedures Under Military Rule‟. A Seminar Paper

Presented at the COAS Conference Annual Conference, Abuja (1997), P. 4

10 Dressler, SP military law In diction (Indian napolis law press, 1993) P. 68.

3

application, by Military commanders at different levels, who administer justice according to their whims and caprices11. There are cases of flagrant disregard of the rule of law and the principles of fair hearing who have tended to paint the picture that the Nigerian Military was averse to the rule of law. For instance, in the case of Anyankpele v. Nigerian Army12 The appellant, a brigadier General in the Nigeria Army was charged for Disobedience to Standing Order, contrary to section 57 (1) of the Armed forces Decree and Conduct Prejudicial to Good Order and service Discipline contrary to section 103 of the Armed Forces Decree. He was convicted by the court Martial. On appeal to the court of Appeal, the decision was quashed because the order contravened was neither published nor brought to the attention of the accused officer.

Also in Karim v. Nigerian Army13 The appellant was a Lieutenant Colonel and military stores depot commander. Part of his duty was the control and supervision of all stock coming

11 Verbal Dismissal of TP Amos Oogwu at 3 Division Nigerian Army (unreported) suit No. LIC/ABJ/116/2012.

12 (2000) 13 NWLR (pat 684-226-227 paragraph C-G

13 (2000) 4 N.W.L.R (pt 759) 717

4

into the depot by way of their delivering and issuance. He was arrainged for a General court Martial upon a convening order stealing and making of false documents. The Court of Appeal quashed the decision of the General court martial on appeal, on the ground that one of the members of the General court martial was junior to the appellant. It could be safety adduced that the rule of laws and its accompanying tenets can be applied in Nigeria military justice system.

1.2 STATEMENT OF THE RESEARCH PROBLEM

It was Aristotle who said that justice is the bedrock of any society or organization and that the rule of law is the wheel which ensures the smooth running of the society14. The goal of every community or organization is to ensure an orderly, disciplined and just society.

The search for justice is very important in the military, where discipline and total obedience is highly necessary. It is therefore not surprising that the President and commander-in-

14 Archbolds, TA Philosophy of Ancient Greek Anhelm USA, Loco, press (1990) P. 95.

5

chief of the Armed forces of Nigeria adopted the rule of law as one of the cardinal, principles upon which the foundation of his administration rests15, and the Nigeria Military is not excluded from the same.

Rule of law is essential tool military justice employed to reform to strengthen the capacity of the Nigerian Military. Therefore, improving the effectiveness of the Nigeria military justice system through rule of law is an essential prerequisite in sine qua non, as it were, to improving the discipline and operational effectiveness of the military, and consequently its ability to fulfill its constitutionally mandated mission, in protecting and defending the Federal Republic of Nigeria and its people, in a manner which is consonant with its obligations under Nigerian and International law, including respect for human rights and international humanitarian law16.

15 Kanu, Agabi. The cardinal and Derivative principles of Federal Government. A workshop paper

presented by the former Minister of justice and Attorney General of Nigeria at a retreat for Ambassador designate in Abuja (2007) p. 6.

16 Eugene, E Fidall Rule of Laws and Military Justice in Congo (2014) http:/.1blogspot.com/ogchtcpjoua/Uy. Sunday, March 2014)

6

The court martial system, the summary trial, Board of Inquiry and other related matters, regimental inquiry, criminal investigation, rules of evidence, the Armed Forces Act manual of military law pg 1958, Rules of procedure (A) 1972 and so on are all geared towards the enthronement of justice17. However, there were plethora of cases of Kangaroo justice in the military justice both in time past and of recent which ought to be seriously addressed18.

1.3 AIMS AND OBJECTIVES OF THE STUDY

Military justice in a nation like Nigeria as obviously suffering from the hangover of military rule. Some persons and authorities still find it difficult to depart from arbitrary and authoritarian ways of the past with scant regard for the reality of the present democratic order. Sadly, this hangover is still prevalent, to a certain extent in the military justice system. However, this research seek to examine the following:

17 Izuchukwu, M.O. (capt); Reports of Activities of Directorate of Legal Services (NN) Naval Headquarters

(NHQ); A paper presented at the Chief of Naval staff Annual conference (CONSAC), Sokoto, (2007), P.6.

18 Opcit p. 3-4

7
 What is the rule of law and its role in the military justice system.
 Is the military justice system inimical to the rule of laws?
 Is it possible to apply the rule of law in the administration of the criminal justice system and other
processes of redress in the Nigeria Military?

 How can the military justice system and other redress process be made to conform with the rule of law?
 What is the way forward?

1.4 SIGNIFICANCE/IMPORTANCE OF THE STUDY
Military law and military justice administration like every other facet of human endeavour is not static but fluid and continuously evolving. It is therefore necessary to also modify and fine tune operating systems to conveniently align and conform with emerging trend and developments. There has been increasing clamour for military justice administration to conform with constitutional provisions on fundamental human rights, fair hearing, rule of law as well as international norms
8
in these areas as codified in international instruments; a lot of which Nigeria has subscribed to as a signatory.

In the face of this reality, it is crystal clear that there is need for change. Such regeneration should begin with a tweak with the laws regulating military justice system mode of administration starting with the military commanders at all levels who actually administer the system.

As it relates to the rule of law in the military. Moreso, this will attempt to increase the level of knowledge of military personnel on their constitutional rights, considering the fact that these rights are not diminished by the mere fact that they are members of the profession of arm and are administered by both the civil and military laws.

The study is also aimed at enriching literature in this area with a view to educating and disabusing the minds of civilian populace that the criminal justice system in the military is inherently averse to rule of laws, but capable of ensuring fairness.

9

1.5 RESEARCH METHODOLOGY
This work is based on doctrinal method of research. Hence the research is conducted in libraries and internet. The statement of international legal principles depends on this method of research. References are made to few decisions in other jurisdictions, articles, journals, and so on as secondary source where necessary.

1.6. LITERATURE REVIEW

Quite a number of authors/writers have written to express their divergent views on the topic of study with different approaches. The first of these writers is Chiefe T.E.C, an erudite author who has contributed immensely to the development of military law in Nigeria. According to him in his book19, it is pertinent to state that the accused is entitled to be defended by a legal practitioner of his choice, who may be either a civilian or service personnel. That rule 79, rules of procedure made applicable by virtue of section 181 of the

19 Chiefe T.E.C Military Law in Nigeria Under Democratic Rule Diametrics Nigeria Limited, Abuja (2008) P. 126

10
Armed Force Act, enables any legal practitioner whether
military or civilian to appear before a court martial.
That notwithstanding and with due respect to the author
it is needful to say that the above provision is subject to legal
requirement. In this case, the legal practitioner who would

appear before the court martial must be duly called and

qualified to practice in Nigerian courts as held in the case of

Awolowo v. Federal Minister of internal Affairs20. The court

in this case considered the provision of section 21(5) (c) of the

Constitution of Nigeria 1960, which is in pari material with

section 36(6) (c) 1999 CFRN. Udo Udoma J. delivering the

judgment stated thus:

Having examined the provisions of section 21

(5) (c) very carefully, I am inclined to the view that the provision is subject to certain limitations. It is clear that any legal representative chosen would run the risk of being refused entry into Nigeria by the

20 (1962) L.L.R. 177.

11

immigration authority, and by the chief justice of the federation21.
The above decision was upheld by the Supreme Court.

The author furthermore opines that the appearance of civilian legal practitioners in court martial has raised the standard of legal practice in the court martial, by challenging military lawyers to work very hard especially when they are prosecutors or judge advocates facing senior advocates of Nigeria at the defence. That it has also guaranteed fair hearing to the accused servicemen, by ensuring that rule of law is applied at the court martial. He argues that this will prompt the members of the court, judge advocate and the prosecutor to be conscious of the fact that anything in the contrary will be challenged by the civilian lawyer and could be subject matter of an appeal to the appellate court22.

21 Aihce, D.O and Oluyede, P.A Cases and Materials on Constitutional Law in Nigeria. London Oxford
University press. (1979) P:92.

22 Chiefe, T.E.C Military law in Nigeria Under Democratic Rule Diametrics Nigeria Limited. Abuja (2008) P. 129

12

While the author is not wrong, it seems that the best way of ensuring that the accused person gets the best opportunity to defend themselves, they should be encouraged to engage, in addition to the civilian lawyers, the services of tested, competent and experienced retired or discharged military lawyers who are in private legal practice. The major advantage is they are well grounded in military law and military service knowledge, and can adequately lay solid foundation for likely issues that may be raised on appeal, if necessary.

Again, there has been controversy amongst different writers whether the administration of military laws by court martial should observe the tenets of justice and the rule of law. Ocran T. of the North Atlantic Treaty Organization (NATO)

discountenanced the so called „Tenets of Justice‟. In his view

he believed discipline, fidelity and trust to the extent that if

these disappear there will be no army but a rabble23. Colonel

Tallradfe of the United states army agrees that “an army

23 Ocran, T. Politics of the sword ands the Rule of Law. Brusselas Mitteo Press (1997) P. 46
13

without discipline is in fact, more dangerous to the civil

populace than itself24.

Also, colonel Maglish of the Russia army is of the extreme views that soldiers are a description of men who must be ruled with severity25 in the same vein, Winthrop, professor of military law, is of the opinion that;
Sometimes the commander’s preoccupation and indeed main objective is to exercise strict disciplinary control over a motley of men who are equipped and are in control of most dangerous weapons and in so far as the disciplinary control is achieved, it is immaterial that the principles of law, justice and the rule of law are jettisoned26.
However, Ansell, S.T the judge advocate general of the
United States army from 1997-1999 believed that the tenets of

the rule of law need not be jettisoned. He encapsulates his

position thus:

The military environment is not exactly congenial to justice. The militaristic mind is rather intolerant to those methods and process necessary for justice. Justice is not a thing which can be left to be nurtured by un-

24 Tallradge E. the Law and the Army New Jesse USA. Runnel press (1990) p. 48

25 Maglish, A. Military Politics, Pennsylvania. Forth Publishers(1980) p. 38.

26 Winthrop, A. the Military Commander and Military Law. New Jersey, USA. Macabe press (1986 p. 55)

14

nurtured man. Frequently, it must be achieved through pain and toil. It is a high object of government, and government is required for its establishment when resort is had to trial, justice cannot be achieved unless the methods of the trial are themselves just. The process used leading to the result itself are essentially involved in justice and if the procedure is wrong, so is likely to be the result27.

One cannot agree less with the above writers, in that any

force bereft of discipline, no matter the abundance of

impressive military hardware that adorns its armory cannot be

reckoned with professionally. However, it is submitted that

proper application of rule of law will further, undoubtedly

enhance military professionalism.

Ansell, has adopted the appropriate position in that justice

must be achieved by constantly applying the rules and

procedures that shape the institutional order. This means that

there must be a set procedural rules which are transparent,

fair and fixed. The concept of the rule of law which is that no

one is above the law is hereby adopted for it captures the

essence of the study.

27 Ansel, S.TE the Arm of Justice. Rhode Island, USA Charlotte Press. (2000) Pa. 29

15

Additionally, in analyzing the decisions of appellate courts

on court martial appeals and to unravel their rational for

overturning majority of courts martial decisions, D.B Takai28 is

of the view that this is unpleasant and stems from a lack of

understanding of the military justice system by the appellate

judges.

As a response to these, an astute practitioner in a resound

comment on a military law has made the following comment

on the Nigeria justice system:

It is indeed unfortunate that the military justice system is being destroyed from within and ironically by those entrusted with its enforcement. If it is realized that court martial trials in this country are amenable to the supervisory and appellate jurisdiction of the regular courts up to the Supreme Court, the need to act appropriately and in accordance with law becomes imperative29.

he above comment aptly expresses the current situation

of the Nigerian military justice system. This is because a

detailed study of the trend of the decisions of the appellate

28 Takai, D.B Decisions of Appellate Courts on Court Martial. Military Law Journal Abuja. 2 Apri2dl

(2009) Volume 4 P. 166.

29 Akin, Kejawa Diligent Prosecution. Lagos, 10 November (2003) P. 9

16

courts on court martial appeals will reveal that the often mortal injustice to court martial occasioned by their reversal are self-inflicted D.B Takai (supra further listed the reasons for reversal of courts martial cases on appeal as follows:

Lack of jurisdiction due to: improper issuance of convening order, improper composition of the court martial wrongly drafted charges president or members jumping into the arena by taking over the prosecution; lack of fair hearing, joint trials where there are no joint charges; failure to evaluate evidence; confirmation without affording accused the opportunity to petition within three months, confirmation by the same officer who convenes the court.

Obviously, the above reasons include but are not limited to those listed. In other words, they are not exhaustive. Another major reason why military cases are quashed at appellate courts, among others, is due to failure to observe procedure. On 6 May 2014 the National Industrial Court, Abuja Judicial Division, in a case between Oogwu v.

17

Nigerian30 army (unreported) a dismissal award given by the defendant to the claimant was upturned for failure to adhere strictly to the provisions of section 59(a) of the Act31.
The views from some other commentators are somewhat more succinct and reflect the thinking in some quarters that military justice is an “inferior” system of justice. For instance, J. W. Bishop32 once referred to military courts as the “Kangaroo” proceedings in which a wretched convict is dragged before the panel of sadistic martinets, convicted on the basis of perjured evidence and his own confession, which has been extracted by torture, and sentenced to fifty or sixty years of a solitary confinement, chained to a wall of subterranean dungeon and fed on bread and water.

Even the United Nations on human rights sub-commission on the protection and promotion of human rights has on the past expressed the view that military justice has a tendency to reinforce the impunity of military personnel,

30 Suit No. NIC /ABJ/116/2012 Delivered on 6/5/14.
31 Armed forces Act cap A 20 Laws of the Federal of Nigerian 2004

32 Bishop, J.W A case for Military, Judge Advocate General School, United states. 30 August (1973) P. 49

18

particularly high ranking officers responsible for human rights violation constituting serious crimes under the international law33.

According to Festus Okoye, “The military had contended that special and military tribunals are part of our judicial and constitutional order. That the contention is misplaced as the types of tribunal envisaged and provided for by the constitution are completely different from the plethora of tribunals being set up by the Nigerian military.34

In the context of these trenchant criticisms it may not be out of place to state that globally, the military justice system had/is being pilloried. This is not farfetched from the fact that the system lack impartiality which is the greatest attribute that any adjudicating body must always lays lay claim.

33 United Nations Commission on Human Rights Sub-commissions on the Promotions and Protection of

Human Rights on Administration of justice through Military justice system. Fifty-fourth session. 9 July (2002) P. 2.

34 Okoye, F. Special Military Tribunals and the Administration of Justice in Nigeria- Human Right
Monitors. Kaduna. 20 September (2006) P. 7

19

Meanwhile, Omachi, an industrious, upcoming writer in

military law has done a thorough job in his book35 though,

erroneously, with due respect, stated that accused person may

elect to be tried summarily or by court martial.

Rather, the true position is provided by the enabling Act,

Section 117, which provides thus36:

Notwithstanding anything in the foregoing section of this Act, a commanding officer shall not proceed with the trial of an officer, a warrant officer, petty officer until he had afforded the officer, warrant officer or petty officer and opportunity of electing to be tried by a court martial and if the person so elect in writing the commanding officer shall take the prescribed steps with a view to the charge being tried by a court martial37.

While section 11638 (c) provides that: Where the accused

is below the rank of warrant officer, class one or chief petty

officer, the brigade commander or his equivalent, may

35 Omachi AI Court Martial: Law and Practice in the Armed forces of Nigeria, Kaduna Faith Publishers,

Abuja (2012) P. 41

36 Armed forces Act cap A20 Laws of Federation of Nigeria 2004.

38 Id

20
summarily deal with the case or award any of the following punishment that is…

With the combined effect of all the above provisions it clearly show that for an accused person to be afforded the opportunity to elect, he must fall within the rank of warrant officer and above and not open-ended. (Note that warrant officer class one is equivalent to master warrant officer) pursuant to section 11739. While section 116(b) show that any commanding officer below appointment of battalion commander or brigade commander or its equivalent cannot try warrant officer or warrant officer class one (master warrant officer) and above as the case may be, but can refer him to the next higher rank as provided by section 11540, 11641 and 11742 respectively.

39 Op cit p. 16

40 Id

41 Id
42 Id

1.7 SCOPE OF THE STUDY

the study will exhaustively deal with military justice system in Nigeria. Starting from history, pretrial, post-trial and appeal.

1.8 ORGANIZATIONAL LAYOUT

The structure of this work is anchored on a five chapter format. Chapter one deals with General introduction which presents the subject matter of the research, its problem,

objective, scope, methodology, literature review, significance/importance and organization layout.

Chapter two explains General introduction to military justice system. It contains Doctrine of compact, Concept of Rule of Law, Evolution of Military law, Preliminary Issues for consideration, Power of command, Jurisdiction of the Offence and Offender, Preliminary Objection Available to the Accused

Person, Preliminary Procedures, Arrest, Custody, Constitutional Safe Guard for Fair Hearing, Unit Investigation, Commander Investigation, Board or Regimental Inquiry and Military Police Investigation.

Chapter three discusses introduction to Pretrial, Trial

and Post Trial Procedure which embodies; Applicable Laws, Pretrial Process, Service of Charge or Charges within 24 Hours, Provision of Interpreter; Summary and Abstract of Evidence, Call of Defence witnesses/s, Summary Trial, Court Martial Trial. Post Trial Matters and Redress

Chapter Four deals with Introduction to Contentious Issues in Military Justice System which include; Initiation of services Process by Response to Legal Process by the Military. Appeals, Challenges and Issues.

Chapter Five deals with Conclusion, Findings /Observation.

 

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