Critical Analysis Of The Military Justice System In Nigeria
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.
CHAPTER ONE INTRODUCTION
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.
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
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.
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
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.
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.
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)
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.
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
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?
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
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.
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
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.
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.