Does the Manner of Appointment of Court-Martial Members Affect Its Independence?
Whether the manner of appointment of court-martial members affects its independence is a question many critics will quickly respond to with “yes”. But will it surprise you to hear that court-martial enjoys greater independence than the civil court? Don’t be surprised because the Armed Forces Act CAP. A20, LFN, 2004 (AFA) has made it possible. The convening officer, therefore, is not at liberty to appoint whomever he likes to be a member of a court-martial he is convening. See sections 133 and 134 of the AFA to clear your doubt. For instance section 133(2) provides that:
“An officer shall not be appointed to be a member of a court-martial unless he is subject to service law under this Act and has been an officer in any of the services of the Armed Forces for a period amounting in the aggregate to not less than five years”.
The above provision simply means that a potential court-martial member must not only be controllable by the AFA but must also be competent and rich in service knowledge by virtue of his total years of service in the entire Military not being less than five years.
Besides:
“An officer who, at any time between the date on which the accused was charged with the offence and the date of the trial, has been the commanding officer of the accused and any other officer who has investigated the charge against the accused, or who under service law has held or has acted as one of the persons holding an inquiry into matters relating to the subject matter of the charge against the accused, shall not sit as a member of a court-martial or act as Judge advocate at the court-martial”. (See section 134 (2) of AFA)
The above provision simply means that no officer who had known the accused either as his immediate past commander or as having investigated him on the issue at stake can be a member of any court-martial set up to try the accused. Such an officer can’t even be a Judge Advocate in such a court.
In the case of Karim Vs. Army,(2001) 4 NWLR, the court held that:
“A General Court-Martial is the creation of statute and as a body or tribunal as created it must be convened and constituted in conformity with the provision of the enabling statute or else it is without jurisdiction”.
The AFA has provided both substantial and procedural rules that must be obeyed by both the convening authority and the court-martial itself, at least, to save the court-martial judgments from merciless reviews of the civilian appellate courts. See the case of Akono V. Nigerian Army (2000) F.W.L.R (Pt.28) 2212 at 2229 where the court of Appeal stated that:
“It is mandatory in order to maintain strict discipline in the Armed Forces that an officer must be tried by his peers. A convening officer who is unable to find suitable officers in his service can borrow suitable officers from other services”.
Suffice it to say that the AFA has provided every safe guard necessary for every court-martial to operate in an environment of independence and impartiality. For instance, I recall during one of my stints as a Judge advocate, the President of a court-martial saying that he would not go close to the convening officer for any reason whatsoever until he was done with his duty as the President of that very court-martial. The reality from the above is that the manner of appointment of court-martial members is properly safeguarded for optimum compliance with the constitutionally required independence and impartiality of the court. For more on this subject, please see Chapter 2 of my Book entitled, Introduction to Military Law Practice and Procedure in Nigeria.
