"After the organisation of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy... ." - Maurice de Saxe.
Recently, the immediate past Chief of Defence Staff, Air Marshal Alex Barde (Rtd.) disclosed that the armed forces led by him lacked the equipment to fight the insurgents in the North-East region. On his own part, the immediate past National Security Adviser, Col. Sambo Dasuki (Rtd.) said the arms and ammunition ordered during the government of former President Goodluck Jonathan would soon be delivered to the government. He stated that some elements, whose identities he did not disclose, were frustrating the nation's efforts to get the critically needed equipment to fight the terror sect, Boko Haram. The implication of such belated revelations is that the huge fund earmarked for the purchase of military hardware for waging the war against terror was diverted and cornered by the military hierarchy.
What the former helmsmen have not disclosed is that through official negligence thousands of ill-equipped soldiers were massacred by the insurgents while those who refused to commit suicide were either tried, convicted and sentenced to death for mutiny by courts-martial set up in questionable circumstances. To avoid the further embarrassment which the death penalty might attract for the armed forces the immediate past Chief of Army Staff, General Kenneth Minimah (Rtd.) resorted to the secret and summary dismissal of hundreds of soldiers in contravention of the Armed Forces Act. In gross violation of the fundamental right of condemned soldiers to fair hearing, the then Chief of Army Staff refused to confirm or review the findings of the courts-martial which convicted and sentenced them to death. Our law office had no choice but to challenge the inhuman treatment meted out to the condemned soldiers at the Federal High Court and those who were dismissed at the National Industrial Court.
Reprieve For Convicted Military Personnel
By refusing to promulgate and confirm the said findings, the ex-Chief of Army Staff denied the convicted soldiers the constitutional right of appeal. Instead of transferring them to prison as required by law, the army authorities have kept the condemned soldiers incommunicado in dehumanising conditions in an underground cell in Apapa, Lagos. Even their family members and lawyers have been denied access to them. This in effect means that the fundamental rights of the convicted soldiers to dignity, liberty, fair hearing and freedom of association are being violated without any legal justification.
In line with the policy of the Buhari Administration to review the prosecution of the war on terror, President Buhari has rightly ordered an inquiry into the procurement of military hardware from 2007-2015. After all, the senior military officers who were recently in charge of the armed forces have confirmed that the troops deployed by them to fight the terrorists were neither equipped nor motivated. The courts-martial have been dissolved with the exception of the one trying Brigadier-General Enitan Ransome-Kuti. It is our submission that exclusion of the accused senior officer and the 70 soldiers sentenced to death from the general amnesty is inequitable and illegal as it violates their fundamental right to freedom from discrimination guaranteed by section 42 of the Constitution and article 2 of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap A9, Laws of the Federation of Nigeria, 2004.
Military Law and the Armed Forces
Military law is the corpus of laws and regulations made exclusively for the members of the Armed Forces. Lt-General AB Dambazau (Rtd) in his book, Military Law Terminologies defined military law as a body of rules which regulate the conduct of members of the Armed Forces. Thus, the main objective of military law is to ensure discipline and good order in the Armed Forces. In Nigeria, the law governing the military is the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004, while trial before military courts is governed by the Rules of Procedure imported from the United Kingdom in 1972. Other rules, regulations and service orders issued by the appropriate authorities are binding on service personnel.
The object of the AFA is twofold, namely to provide for the maintenance of discipline among the members of the Armed Forces and to provide for administrative matters. In practice, the Act is often used with reference to the disciplinary provisions alone. Erring personnel suspected of infraction(s) of the Act are either tried summarily or by courts-martial. During the summary trial of personnel, legal representation is denied even though a severe punishment such as dismissal from the service could be awarded.
Despite the clear provisions of the 1999 Constitution, compliance with the minimum human rights standard in the administration of military justice in Nigeria has remained a mirage. It is obvious that the reason for reversal of the majority of cases decided by courts-martial by the appellate courts is the breach of the fundamental rights of convicted soldiers to fair hearing. See Col Umar Mohammed v The Nigerian Army (1998) 7 NWLR (Pt.557), Brig Gen Gabriel Anyankpele v NA (2000) 13 NWLR Part 68, Nigerian Army v Brig Gen Maude Aminu Kano (2010) Vol 35 WRN 1, R/Adm Francis Agbiti v Nigerian Navy (2012) AFLR (Pt. 1) 29, Capt Asake v Nigerian Army Council (2006) Vol. 45 WRN 71 at 77 etc.
As military courts are usually constituted by officers who are not lawyers, the AFA provides for the appointment of a judge advocate to give legal advice to the members of a court-martial. It is however sad to note that judge advocates see themselves as an extension of the prosecution whose legal opinion is usually tailored to ensure the conviction of the defendants. In some cases, the judge advocates take over the prosecution completely. Rather than display an attitude of transparent impartiality or neutrality, the judge advocate openly exhibits an objective which is to railroad the accused to conviction on behalf of the Convening Authority. Since judge advocates are junior military officers they often find it difficult to offer legal opinion which may make it impossible for military courts to arrive at findings that are in tandem with the requirements of the rules of natural justice.
Abuse of Human Rights In Military Justice System
Unlawful command influence occurs when the military authority influences, impedes or otherwise misdirects the administration of military justice. The structure of the military justice system presently in Nigeria is such that there is always command influence on the court. The Armed Forces Act places enormous power on the Convening Officer of a court martial. A convening officer has the power to decide the types of court to try an accused person; to frame charges against the accused; and more importantly, to appoint the president and members of such courts including the judge advocate who are subordinates in rank to him and directly under his command (See Sections 129 -133 of the Armed Forces Act). This is clearly inconsistent with the provision of Section 36 (1) of the 1999 Constitution which guarantees that a court shall be constituted in a manner as to secure its independence and impartiality.
Undue Interference and Display of Bias By Military Courts
It must be stated that a military court ought to be an unbiased umpire that should never enter into the arena of conflict. Though the law allows the court to put questions to witnesses for the just determination of a case, the questions must not be such that would not give the impression of taking over the prosecution of the case. In the celebrated case of Col. Umar Mohammed v The Nigerian Army, the appellant who was the Commander of the 2nd Amphibious Brigade, Port Harcourt was charged with illegal collection of levies from the mammy market controlled by the Brigade. During the trial, the President of the court-martial interfered in the questioning of the witnesses to the extent that he virtually took over the proceedings.
In quashing the conviction and sentence of the accused for breach of the rule of fair hearing, the Court of Appeal stated that, "Where a court or tribunal of justice unwittingly proceeds to make statements in the course of proceedings which go to impugn the integrity of the trial then the trial has been fundamentally and irredeemably flawed. Hearing of a civil matter or trial in a criminal matter must be made to be so crystal clear by the way the court conducts itself that no one can be left in doubt of the fairness of the trial".
Detention During Trial
It will interest you to know that in the Nigeria military justice system, there is no provision for bail. Once a service person is remanded for trial by a court martial, the fundamental right to freedom of movement as enshrined in Section 41 of the 1999 Constitution is automatically withdrawn and the person clamped into detention throughout the duration of the trial. My several attempts at military trials to apply for bail on behalf of service personnel had always met a brick wall and the only time that it was granted, the bail conditions was intentionally made so stringent that it could not be met. The denial of bail to persons undergoing trial in military courts negates the presumption of innocence which enures in favour of accused persons guaranteed by section 36 of the Constitution and Section 122 of the Armed Forces Act).
Secret Trial of Service Personnel
Apart from the very rare occasions that the press has been allowed to cover the opening inauguration of courts-martial members of the public are excluded from their proceedings. The trial of service personnel in camera is a clear disregard of Section 139 (1) of the Armed Forces Act which provides that courts martial shall sit in open court. More importantly, it is a breach of Section 36 (4) of the 1999 Constitution which requires that all criminal trials shall be conducted in public within a reasonable time. In Nigerian Army v Brig Gen Maude Aminu Kano supra, the SC held in emphatic terms that the fundamental rights provisions of the Constitution apply to all Nigerians including members of the Armed Forces who are also entitled to the protection of the guaranteed rights.
Fundamental Right of Soldiers to Protest
Contrary to the general belief in military circles, a peaceful or violent demonstration or protest by soldiers does not constitute mutiny per se. But a strike or violent protest by soldiers is an act of insubordination which is punishable under the AFA. Specifically, Section 54 thereof provides that a person subject to service law who-
(a) strikes or otherwise uses violence to, his superior officer, or (b) uses threatening or insubordinate language to his superior officer, is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
Notwithstanding that members of the armed forces are Nigerian citizens who are entitled to exercise their fundamental right to freedom of expression, whenever soldiers have staged a protest they have been charged with mutiny punishable by death. In Inspector-General of Police V. All Nigeria Peoples Party (2008) 12 WRN 65 at 106 the Court of Appeal held a protest rally or demonstration is a trend recognised and deeply entrenched in the Constitution of every democratic country as a component of the freedom of expression.
In addition to the constitutional right of freedom of expression of soldiers, section 179 of the Armed Forces Act, Cap A20. Laws of the Federation of Nigeria, 2004 recognises the right of a soldier, rating or aircraftman to make a complaint to his appropriate commanding officer and that he shall not be penalised for having made a complaint in so far as the complaint. The complaint of the convicted soldiers pertaining to lack of adequate weapons to fight terrorism was made in accordance with the Armed Forces Act and the Constitution. In the circumstance, the charge of mutiny is illegal and unconstitutional.
In view of the lack of equipment which led to the tragic killing of three officers and 23 soldiers by the insurgents in July, it cannot be said that the demand for weapons to engage in the operations against the enemy constituted mutiny. Indeed, the request for adequate support weapons is justified by Section 217 (2) of the 1999 Constitution which provides that "The Federation shall, subject to an Act of the National Assembly made in that behalf equip and maintain the armed forces as may be considered adequate ... " I cannot but agree with General Ishola Williams (Rtd.) that "The army's top hierarchy is covering up its weaknesses by court-martialing these soldiers. The staff from the HQ (defence headquarters) and the generals are to blame."
For defending soldiers charged with mutiny, I have been accused of encouraging indiscipline by defending soldiers who challenged the actions of constituted authority in the armed forces. In pleading not guilty to the charge, I have only defended soldiers either for protesting the diversion of their legitimate allowances or for demanding for equipment to fight the well motivated and well equipped troops of the dreaded Boko Haram sect. In the case of Corporal Oliver & 26 Ors v Nigerian Army, over soldiers drawn from across the country and quartered at the Owena Barracks of the 323 Regiment in Akure, Ondo State protested on July 4, 2008 over the non-payment of the operational allowances due to them during a peace keeping mission in Liberia. In the inquiry conducted by the army authorities, 27 of the soldiers who were identified in the protest were charged with conspiracy and mutiny.
In defending the soldiers, I had relied on the case of Cpl Oladele & Ors v Nigerian Army (2003) 36 WRN 48, wherein the appellants who were injured in the ECOMOG peace keeping operations in Liberia were flown to Egypt for medical treatment. On the day they were to return to Nigeria, they protested violently at the Cairo Airport over the non-payment of their estacode. They were brought home and charged with mutiny, convicted and sentenced to various prisons terms, including life imprisonment, by a Court Martial. In setting aside the conviction and sentences passed on the Appellants, the Court of Appeal observed thus:
"Mutiny is a criminal offence of a serious dimension. The pieces of evidence that l have reviewed supra have not shown that the appellants disobeyed any order deliberately nor did they use any violence. If anything at all, all they did was to protest the non-payment of their estacode. Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier traveled with some estacode and was emphatic that the Appellants were not prohibited but there was no express provision for the payment of estacode to them."
The Court-martial discountenanced the case of Cpl Oladele v Nigerian Army (supra) and proceeded to convict and sentence the 27 soldiers to life imprisonment. But pursuant to our petition, the then Chief of Army Staff, Lt-General Azubike Ihejirika confirmed that there was no justification for withholding the legitimate entitlements of the soldiers. While condemning the resort to violence by the soldiers, the Army Chief commuted the sentence of life imprisonment to 7 years imprisonment. Shortly thereafter, the case was revisited and the convicted soldiers were granted full pardon.
It is further submitted that a mere protest by soldiers is no longer considered a mutinous act in other jurisdictions. For instance, on February 12, 2013, 16 British soldiers from a platoon undergoing training in Kenya staged a sit-down protest over some grievances in front of 1,000 people in Nairobi. The soldiers were not charged with mutiny but disobedience to a lawful command under the Armed Forces Act. Each of the soldiers pleaded guilty to the charge. In his judgment, Judge Alan Large said that the soldiers had brought shame and embarrassment on themselves, the regiment and the Army. 15 of them were convicted and sentenced to 40-60 days' detention while the ringleader was booted out of the Army. (See www.dailymail.co.uk/news/article-2520937/Soldiers stage mutiny).
Similarly, on August 15, 2013, hundreds of soldiers staged a street protest in Ouagadougou, Burkina Faso to demand for the reimbursement of withheld housing allowance. The protest was suspended upon receiving assurance from the army authorities that the withheld allowance would be paid. Even though the protest embarrassed the hierarchy of the army and the government the military authorities in that country did not try any of the soldiers for mutiny or any offence whatsoever for taking part in the protest. (See www.irinews.org/report/8034.)
In view of the lack of equipment which has led to the tragic killing of hundreds of officers and soldiers by the insurgents in the North-East region, it cannot be said that the demand for weapons to engage in the operations against the enemy constituted mutiny. Indeed, the request for adequate support weapons is justified by Section 217 (2) of the 1999 Constitution which provides that "The Federation shall, subject to an Act of the National Assembly made in that behalf equip and maintain the armed forces as may be considered adequate ... "
No doubt, members of the armed forces subscribe to the oath of allegiance to defend the territorial integrity of the nation but the oath is not a license to commit suicide. It is a solemn undertaking to defend the nation based on the expectation that the Federal Government would have complied with Section 217 of the Constitution on the mandatory requirement to equip the armed forces adequately. The failure of the Federal Government to provide adequate weapons for the armed forces led President Jonathan to seek legislative approval last year for a loan of $1 billion to purchase military hardware. Although the request was granted the weapons were not purchased by the authorities.
In preparing the cases of some of the officers charged with mutiny, cowardly behaviour and allied offences before courts-martial, I had cause to request for information on the disbursement of the fund from the then Minster of Finance and the Coordinating Minister of the Economy, Dr. Ngozi Okonjo Iweala under the Freedom of Information Act. In a prompt response, she claimed that she was not in a position to accede to my request as it was "a military affair". While the Buhari Administration has rightly ordered a probe into the procurement of weapons from 2007-2015, it is my submission that the military commanders who caused the massacre of hundreds of officers and soldiers by deploying them to the war zone without adequate weapons ought to be prosecuted either by the Attorney-General of the Federation or the Special Prosecutor of the International Criminal Court for engaging in genocide and crimes against humanity.
Urgent Recommendations for Review of Military Law
It ought to be borne in mind that the Armed Forces Decree of 1993 was promulgated by the Ibarahim Babangida junta for the trial of service personnel under a military junta that had contempt for the rule of law and human rights. Therefore, the AFA requires a holistic review to make it conform with the provisions of the Constitution. As a matter of urgency, the Rules of Procedure of 1972 applicable in courts-martial imported to Nigeria from the United Kingdom and adopted wholesale in 1972 has since been amended in line with the Human Rights Act of that country. The Rules of Procedure should be amended in line with the principles of fair hearing.
In the case of General Raji v Nigerian Army, the special court-martial discharged and acquitted in respect of the three counts contained in the charge against the defendant but turned round to sentence him to 3 months loss of seniority. When I challenged the basis of punishing the defendant after his acquittal, a member of the military informed me in confidence that the authorities who constituted the court could victimise them if they did not award any punishment in the circumstance. However, our representation was favourably considered by the Army Council which quashed the sentence.
For the urgent review of the AFA, I wish to recommend as follows:
i. To guarantee the independence and impartiality of military courts they should be headed by retired judges who will sit with other members appointed by the military authorities. This is only way to enhance discipline in the armed forces as the appellate courts have recently set aside not less that 80 percent of cases decided by courts-martial;
ii. The confirmation of the findings of military courts should be dispensed with as it has frustrated convicted personnel from exercising the right of appeal to the Court of Appeal within the three months allowed by law;
iii. Since every person charged with a criminal offence is entitled to be given adequate facilities by the State for the preparation of their defence, the prosecution should be compelled to file proof of evidence together with the charge. In other words, the witness statements of all prosecution witnesses and relevant documents should be made available to the defendants;
iv. As every person charged with a criminal offence is entitled to legal representation even before making a statement in a police station, service personnel charged by their commanders with committing criminal offences or misconduct should be allowed to defend themselves in person or by legal practitioners of their choice;
v. Since every defendant in a criminal trial is presumed innocent until the contrary is proved by the prosecution, military courts should respect the fundamental right of defendants to personal liberty by admitting them to bail in deserving cases, either conditionally or unconditionally;
vi. The authorities of the Armed forces should sanction military personnel who violate the fundamental rights of the Nigerian people. The case of Ransome-Kuti v Attorney-General of the Federation (1985) 2 N.W.L.R.(Pt.6) 211 was dismissed on the ground of rex peccare non facit (the king can do no wrong). But as the law has changed the military invasions of Odi in Bayelsa State, Zaki Biam in Benue State and Gbaramotu in Delta State, the Federal High Court awarded reparation of about N200 billion. Soldiers whose fundamental rights are violated are also entitled to demand for payment of damages. Thus, in Akeem V. Federal Republic of Nigeria the ECOWAS Court awarded N5 million in favour of a soldier for illegal detention in a military barracks. In Okereke v Rear Admiral Arogundade, the application was awarded N120 million damages by the Lagos high court for the violation of her fundamental right to dignity. To arrest the ugly development, the military personnel indicted by the courts should be sanctioned and made to pay a percentage of the damages awarded to victims of human rights violations.
Based on the decision of the federal government to review the cases of all military personnel undergoing trial or unjustly convicted or dismissed from the armed forces in connection with the war on terror, the ongoing trial of General Ransome-Guti should be discontinued forthwith while the death sentenced imposed on the condemned soldiers should be set aside. In Turner Ogboru v Attorney-General of the Federation, the Federal High Court found that the applicant's further detention was illegal on the ground that he was unjustly excluded from the general pardon granted to all convicted persons and detainees.
Since the Buhari Administration is determined to end impunity and restore the rule of law in the country, the military authorities should not hesitate to review the AFA and the Rules of Procedure to make them conform with the fundamental rights provisions of the Constitution and other international human rights treaties and protocol which have been ratified by Nigeria. As I conclude this presentation I am compelled, once again, to commend to the military authorities the case of Cpl Segun Oladele & 22 Others v Nigerian Army supra, where Aderemi J.C.A. (as he then was) had this to say:
"Let it be said that members of the armed forces in this country have not denounced their membership of the Nigerian society and it seems to me that they cannot do so in a manner calculated to jettison the provisions of the Nigerian Constitution, the grundnorm... The members of the armed forces are not excluded from the application of the provisions of the Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc."
Femi Falana (SAN) write from Lagos.
The was presented at the 2015 Annual General Conference of the Nigerian Bar Conference going on at the International Conference Centre, Abuja, August 21st-28th, 2015.