Introduction

When section 217 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) established the Armed Forces for Nigeria, it equally gave it a separate judicial system to enable it sustain its unique nature for efficient performance of its unique role. For avoidance of doubt, the Attorney General of the Federation can interfere with the proceedings of any other court in Nigeria but not with that of a Court-martial, see section 174 (1) (a) CFRN 1999 (as amended) which provides as follows:

“The Attorney-General of the Federation shall have power- a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly”.

A salient difference between the two systems is in their differing main goals. Whereas the military legal system basically aims to enforce and sustain discipline in the Armed Forces, the civilian legal system aims to protect the rights of individuals while convicting and punishing criminal offenders. Moreover, to scrutinize the conduct of the soldiers in a manner particular to the military is an essential precondition to achieving military goals and so it is the most important justification for creating a separate and independent judicial system for the military. Simply put, men who understand the conduct of military personnel and military goal must scrutinize and try the conduct of military personnel to achieve military goal.

Constitutionality Of Court Martial Trial

One of the reasonable grounds justifying a separate judicial system for the military is that the military is a comprehensive structure whose unique scope of conduct relates to a large number of diverse factors, including experience. And so to administer the Military law among service personnel, the Armed Forces Act, CAP A 20 LFN, 2004 (AFA) provides Courts-Martial and summary trials under sections 129, 115, and 116 respectively. Affirming the constitutionality of Courts-Martial trial in the case of Brig-Gen Anyankpele v. NA (2000) 13 NWLR (Pt. 684)…209, the Court of Appeal stated as follows:

“Judicial powers of the Federation of Nigeria are vested by virtue of Section 6 of the 1979 Constitution in the courts to which the section relates. The section relates to the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of a State, the Sharia Court of Appeal of a State and such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws. The General Court Martial and the Armed Forces Disciplinary Committee are the likes of courts also envisaged by section 6(5) (g) of the Constitution, (Pp.225-226, paras H-E).”

Suffice it to say that Court-martial trial impliedly created under section 6 (5) (g) CFRN 1999 (as amended) is expressly created by section 174 (1) (a) of the same Constitution, cited above.

The Peculiarity Of Military Profession

Alienability of fundamental Human Right to Life: Democratic norms require that every citizen including a soldier should bear civic duties and be entitled to protection for all his civil rights. But the fact that the soldier is part of the mechanism responsible for the national security makes his right to life alienable. He has been unwittingly pushed into a tacit waiver of his right to life which is the most fundamental right of every human being. The soldier is subject to meddling with potentially life-taking dangers while carrying out his task in almost every condition whereas his civilian friend is free to abandon his job at will. The soldier is trained to behave differently, walk differently and talk differently mainly because a soldier has a very special and unique task assigned to him under section 217 of CFRN 1999 (as amended), a job which other persons in the society are not trained to do. When a person joins the Army, his first taste of discipline is external. His drill Sergeants seek to instill discipline in him as they believe he has no self-discipline. He loses the right to decide when to get up, when to study and what to do next. The way he dresses, the shine on his shoes and the length of his hair ceases to match his taste. The “Spirit of War” is inculcated in the Soldier through a deliberate, systematic and consistent process of training and acculturation to make him distinct and fit to carry on the onerous tasks associated with the “Business of War”.

Furthermore, in the military, the soldier is expected to find mutual dependence and mutual trust as each soldier relies on the other and every soldier depends on each other for the military system to function. Hence a soldier at sentry post is right to rely on the ready support of a back-up personnel within earshot. To preserve and sustain this peculiar military tradition and culture and the right to demand particular behavioral standards from one another, it becomes imperative for the military to have a separate judicial system from the civilian judicial system. But how can the Armed Forces of Nigeria sustain discipline among it’s troops when the Nigerian appellate courts continue to upturn court martial judgments based on principles that undermine military interest and discipline?

The necessity for separate military legal system was affirmed in an American Army case of Paker V Levy (417 U.S 733 (1974) where it stated as follows:

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise …”

Peculiarity Of Military Justice

The primary purpose of military law is to ensure that all service personnel are disciplined enough to always be battle-ready to perform optimally and ensure that the troops’ morale is ever high. This mood or disposition of troops is sustained by training and effective administration of military justice by Commanding Officers.

In response to repeated calls to soften the Military justice system in the United States of America, Professor John Henry Wigmore wrote as follows:

“The military system can say this for itself: it knows what it wants; and it systematically goes in and gets it. Civilian criminal justice does not even know what it wants; much less does it resolutely go for it and get anything. Military justice wants discipline that is, action in obedience to regulations and orders, this being absolutely necessary for prompt, competent, and decisive handling of masses of men. The Courts-Martial system supplies the sanction of this discipline. It takes on the features of justice because it must naturally perform the process of inquiring in a particular case, what was the regulation or order, and whether it was in fact obeyed. But its object is discipline”. See Lessons from Military Justice, 4 J.AM.JUD.SOC YISI (1921) cited in the Military Law Review Vol 215 Spring 2013 P15.

Appreciating the peculiarity of Military law, the AFA has enjoined the Court of Appeal to appoint any person with expert knowledge in Military law as an Assessor when sitting on Appeal over Military cases. Section 188 provides as follows: 

“For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interest of justice, appoint any person with special expert knowledge to act as assessor to the Court in any case where it appears to the Court of Appeal that such special knowledge is required for the proper determination of the case.”

Rationalizing a separate military legal system for the Armed Force in the case of R.V Genereux, the Supreme Court of Canada explained that: 

“The purpose of a separate system of Military Tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the Military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threat to the nation’s security. To maintain the Armed Forces in a state of readiness, the Military must be in a position to enforce internal discipline effectively and efficiently. Breaches of Military discipline must be dealt with speedily and frequently punished more severely than would be the case if a civilian is engaged in such a conduct. As a result, the Military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, Special Service corps have been given jurisdiction to punish breaches of the Code of Service discipline. Recourse to the ordinary criminal courts would as a general rule, be inadequate to serve the disciplinary needs of the Military”

The Differences Between Military Legal System And Civilian Legal System

The differences between military legal system and civilian legal system are in two main areas of procedure and composition of the judicial panel. These differences, no doubt can be rationalized by the differing goals of both systems and the esoteric nature of military laws. Details of the differences between the two judicial systems are as follows:

I.     In terms of procedure, it should be noted that the laws of evidence and criminal procedure in military legal system were drawn from the general criminal law of Nigeria and complemented with military law procedure by the AFA. One of such AFA provisions is at section 181 (1) which provides as follows:

“…the rules of procedure relating to trial by courts-martial and summary proceedings for the time being in force in the various services of the Armed Forces, that is, the Rules of Procedure (Army) 1972, the Court-martial Procedure for Royal Navy BR 11 and the Rules of Procedure (Air Force) 1972, shall apply mutatis mutandis unless otherwise provided”.

II.     On the composition of the judicial panel, whereas the judges in the military legal system are not professional jurists rather military officers with not less than five (5) years seniority and service knowledge which section 143 (3) of AFA enjoins every Court-martial to take judicial notice of, professional judges only sit in judgment in civilian legal system. In the military legal system, the military judges have exclusive knowledge of military offenses like AWOL, insubordination and mutiny which ordinarily confer on them exclusive jurisdiction over such purely military offenses whereas in the civilian legal system the judges are professional jurists often conversant with solely civil offenses. See section 133 (2) of AFA which provides the basic qualification for membership of a Court-martial as follows:

“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 aggregate to not less than five years”.

III.     A soldier who is the subject of a military legal system is part of a mechanism responsible for national security and he is subject to potentially lethal dangers and thereby equally regarded to have tacitly waived the most fundamental human right of every individual, i.e. the right to life. Same is not the case with the subjects of a civilian legal system.

IV.     A soldier in contrast to a civilian is required to carry out his tasks in almost every condition, where as a civilian is entitled to abandon his job at will.

V.     In the army one may find mutual defense and mutual trust. Each soldier relies on the other and without such trust the military cannot function. It is in order to preserve this sense of trust and mutual defense and the right to demand the military behavioral standard that it is necessary to have a judicial system that is separate from the civilian system.

VI.     Practicality and efficiency are the principal reasons justifying a separate legal system for soldiers. Military system must be capable of meeting its own needs unconditionally, remain independent, flexible and must take into account timetables of training programs, specific tasks, etc. Besides, a separate military legal system allows exploitation of the potential manpower, as a soldier who is being punished by a military trial authority still remains with the army to still be used as it may wish.

VII.    To regulate the conduct of the soldiers in a manner particular to the military goals, which the civilian legal system is unaware of, is the most important justification for a separate judicial system for the military.

VIII.   Trial of soldiers by the commanders who are experienced military officers and not professional judges makes it easy for the judges to properly assess and punish soldier’s conduct.

IX.      The trial commander possesses the overall responsibility for military activities and the maintenance of discipline among troops of his unit and therefore unlike the civilian judge knows the facts or ingredients to be looked for during trial.

X.        The trial commander knows when a military interest should have priority over the personal interest of the accused and adjudge the case accordingly.

XI.       Whereas the civilian judicial system acts diligently to protect the rights of an individual in the civilian process the military legal system restricts the soldier’s interests in so far as a preferred and overriding military interest exists and that dictates the actions of the military judiciary.

XII.      The army is a comprehensive structure in which the scope of conduct is unique and it relates to a large number of highly diverse matters to which special military experience is an advantage.

XIII.     The importance of knowledge of these differences cannot be overemphasized as it provides requisite enablement for informed scrutiny and review of military cases on appeal.

Conclusion

The Constitution that established the Armed Forces of Nigeria equally gave her a separate legal system. It is therefore no surprising that section 174 (1) of CFRN 1999 (as amended) has shielded military judiciary from the all-encompassing influence of the Attorney General’s power of Nolle Prosequi. The rationale for this is to allow uninterrupted enforcement and sustenance of the unique tradition and culture of the military for it to continue to play its unique role. Furthermore, proper appreciation of the differences between the two legal systems is very important for proper guidance of the appellate courts in Nigeria when reviewing military trial cases.