THE NIGERIAN COURT MARTIAL AND ITS PROCEDURES BY AKEJU OLUSEGUN.
The Nigerian Armed Forces like any other organizations and governmental institutions was established by statutes which are the 1999 Constitution and The Armed Forces Act. Their administration is also provided for by these statutes and some others such as Section 1 of the Armed Forces Act, Armed Forces (Disciplinary Proceedings) (Special Provisions) Act, Armed Forces Pensions Act, Army Colour (Prohibition of Use) Act, various Statutes of General Application and other relevant Acts. Few lawyers know much about the legal properties of the Nigerian Armed Forces as most of the Faculties of Law in Nigeria do not include Martial or Military Laws in their curriculums. This has taken our patriots to be in the hands of some unchecked Officers as no much criticisms have been projected towards the proceedings in the Court Martial.
The Nigerian Armed Forces is a special Force of which its service men are exempted from some Fundamental Human Rights as provided for in the constitution. A Court Martial is a court or better still a tribunal established to see to the discipline and proceedings in the Nigerian Armed Forces. However other bodies like the Armed Forces Council, Army Council, Nigerian Navy Board and Nigerian Air Council can also carry out disciplinary duties as respectively provided for in Sections 4,9,12 and 15 of the Armed Forces Act.
Just as the Regular Magistrate Courts we see in our communities, have a summary jurisdiction, the military also recognises summary trial. When an offence is committed under the Armed Forces Act, it would be taken to the Commanding Officer or Officer in Charge who shall investigate and make findings. When he finds that such offence is in his capacity and power to try. He then decides to either dismiss the offence where appropriate or provide various punishments as defined in Sections 115-117 of the Armed Forces Act. Offences that could be tried summarily include those stated in Section 124(6) of the Armed Forces Act which made reference to Sections 45, 46, 47, 48, 51, 52, 53, 65, 66, 67, 69, 70, 71, 72, 73, 75, 76, 83, 88, 91, 93, 95 and 98 of the Act. It should be noted that no officer should be under arrest for more than 24 hours except where the commanding officer sees necessary and the trial procedure should be put in motion forthwith. The question of which officer would be qualified to conduct such summary procedure is determined by the rank of the accused officer and the punishments that can be awarded vary (see Section 115 of the Act).
There are two types of Court Martial according to Section 129 of the Armed Forces Act, which are General Court Martial and Special Court Martial.
“129. There shall be, for the purposes of carrying out the provisions of this Act, two types of courts-martial, that is—
(a) A general court-martial, consisting of a President and not less than four members, a waiting member, a liaison officer and a judge advocate;
(b) A special court-martial, consisting of a President and not less than two members, a waiting member, a liaison officer and a judge advocate.”
The court can be convened by the President, the Chief of Defence Staff, the Service Chiefs or other senior officers as stated in Section 131 and 132 of the Act. The court martial is headed by the President, who is appointed by the convener and either of senior rank to or same rank with the accused. Other members of the Court Martial who are also appointed by the convener must not be below the rank of the accused. In the case of LT. COL. K.S. IBERI (RTD) V. ATTORNEY GENERAL OF FEDERATION (2013) AELR 1397 (CA), the Court of Appeal held that the inclusion of two officers of lower ranks to the appellant was against the law and a violation of the fundamental rights of the appellant and as such put the jurisdiction of the Court Martial in question. There must also be waiting member for members that might be absent, he is not a deciding member, a liaison officer and a Judge-Advocate who must be qualified as a legal practitioner in Nigeria and a commissioned officer. The Judge-Advocate serves as the prosecutor and his decisions are only advisory. In order to ensure fair hearing, the convening officer or any other officer that has been involved in the whole issue in one way or the other cannot be a member of the court.
In procedure, the accused has the right to object to any appointment made by the convener based on reasonable grounds. In such case, if not less than one-third of the members support him, the member would be removed and another would be appointed. Though military issues are known to be matters of confidence and as such, any civilian would not just be allowed to meddle in, the accused can be represented by his legal representatives as his fundamental human rights are reasonably intact and just as he was first a Nigerian before he became a service man. The findings and deliberations of the court-martial are always done behind closed doors.
The rules as to evidence are the same with that of any court in Nigeria and witnesses are allowed all immunities, facilities and other provisions as they may be allowed in other courts (except otherwise provided in the Armed Forces Act). Witnesses who are not service members can be summoned by notice and the expenses should be covered. However, a summoned service man could be punished for dishonouring a summon notice. Some of their rules of procedure are actually similar to that of the conventional courts in Nigeria.
After a proceeding, the record of proceedings of a court Martial is sent within sixty (60) days to a superior authority for the confirmation of the findings and decisions. This authority is called the Confirming Authority and it consists of the Service Chief and the relevant Service Council or Board or any person nominated in their stead. However, a person with a locus standi in the matter cannot be a confirming authority. Where the record is not transmitted, the accused is to be released unconditionally pending the review or confirmation of the record of proceedings and provided that the sentence is not one of death or life imprisonment. Also, the accused can within three months after being sentenced, send a written matter to the confirming authority before they finally confirm the record of proceedings. This may affect their decisions. Such matter would be on procedural errors or mitigation of the punishment. A confirming authority may direct the Court-Martial to review her decisions. A confirmed finding may also be reviewed after confirmation of a proceeding. The 1999 Constitution has provided that an accused can appeal the decisions of a court martial. This could be based on error of law on the face of record or procedural errors.
The interesting part is where charges are ran concurrently by a civilian court and a court martial. Against the normal practise of demanding for a stay of proceeding, merging or suspension of such, the Armed Forces (Disciplinary Proceedings) (Special Provision) Act of 1975, in Section 1 provides that
“1. Power of the Council to hold disciplinary proceedings concurrently with criminal proceedings in court on same matter.
Notwithstanding anything to the contrary in any law, the appropriate Council or Board of each force of the Armed Forces of the Federation (in this Act referred to as “the Council”) may institute, and where instituted may continue disciplinary proceedings against any person subject to military law (hereafter referred to as an “officer”) whether or not-
(a) criminal proceedings have been instituted with respect to such a person in any court of law in Nigeria or elsewhere or are about to be instituted or are contemplated; or
(b) The grounds upon which any criminal charge is based or is to be based are substantially the same as those upon which the disciplinary proceedings were or are to be instituted.”
More so, a very interesting point is the allowance of double jeopardy which the constitution has provided against. Section 36(9) 1999 Constitution provides that
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”
However, Section 2 of the Act provides as follows:
“An officer acquitted on a criminal charge for an offence or given a discharge, whether amounting to an acquittal or not, in any court of law may be dismissed or otherwise punished in accordance with any disciplinary provisions on any other charge arising out of his conduct in the matter if the Council is satisfied-
(a) That his conduct in the matter has been in any respect blameworthy; or
(b) That it is in the interest of the force where he is deployed and generally in the interest of the Armed Forces as a whole that he be so punished.
Other interesting provisions are that of Sections 3 and 4 which provide that:
3. No proceedings against Council for contempt of court
It is hereby declared that where disciplinary proceedings are instituted or continued as permitted by this Act no court of law shall have power to charge or commit any person for any act relating to or pertaining to the proceeding which would, but for this section, have amounted to a contempt of any such court and, accordingly, the provisions of this Act shall have effect notwithstanding any law relating to contempt of court to the contrary.
4. Modification of certain provisions
As from the commencement of this Act, the provisions contained in any regulations or rules relating to discipline of officers or contained in any contract or arrangement or in any other instrument whatsoever shall be construed with such modifications, omissions or alterations as may be necessary to give effect to this Act.
In conclusion, though lawyers are allowed to represent their clients in a Court Martial, it still remains the fact that most lawyers are not properly armed with sufficient knowledge of the law regulating court martials but only develop themselves when the need arises. It is hereby adviced that all Faculties of Law in Nigeria should include this in their curriculum so as to reduce the rate of deprivations and breach of fundamental rights of service men.