By Chukwuemeka Castro Nwabuzor,

Research Fellow, NIALS

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As a general rule, persons  in the Armed Forces enjoy the same constitutional rights as civilian, except for those protections and rights which the history and text of the Constitution specifically deny them. A serviceman becomes subject to military law, but he also remains bound by the ordinary civil and criminal law. This is simply what is termed in military parlance as the doctrine of compact of “compact” or burden associated with the military. While some may say that the serviceman, by this doctrine, is governed by two system of law, this is hardly correct as military law is part of the ordinary law of the land.

THE JURISDICTIONAL QUESTION

The 1999 Constitution clearly outlines the courts that constitute the superior courts of records. They include those courts mentioned in s. 6 (5) (a) to (i) of the Constitution. Among these are the Supreme Court of Nigeria, the Court of Appeal, the High Court (both Federal and State) and Sharia and Customary Courts of Appeal. It thus can be implied that those courts recognized under s. 6 (5) (j), like courts-martial,  will only be deemed to be ‘inferior courts of records’.

By s. 130 (1) and (3) of the Armed Forces Act (AFA), a court-martial is given powers subject to the provisions of the Act to try a person subject to service law for an offence and award for the offence, a punishment authorised by the Act for that offence.

Courts-martial are set up principally because civil courts might not deal so well with the nice subtleties of military law. But one would question whether courts-martial are seized of the trial of all offences committed by those subject to service law to the exclusion of the civil court (in this instance, the Federal High Court, for the Armed Forces is a Federal Government Agency).  This cannot be the case as the Federal High Court is conferred with all the power of the High Court of a State,  and thus, has original jurisdiction over any criminal matter which fails within its jurisdiction.

Section 170 (1) of the AFA is clear and straight to the point. Thus, except where a conviction has been quashed upon appeal,  nothing in the Act is bound to restrict the offences for which a person may be tried by a civil court, or the jurisdiction of a civil court to try a person subject to service law for an offence. This section recognizes the superior status of the civil court (its Federal High Court) over a court-martial.

Section 171 (1) AFA also buttresses the effect of the superior status of a Federal High Court over a court-martial when it states that a trial by a civil court will be a bar to subsequent trial by a court-martial. The reverse is not the case however. The only deference the Federal High Court will pay to a court-martial proceeding is to take into cognisance the punishment awarded by a court-martial to an defendant in awarding its own punishment.

One reality that comes to mind is that if the strict provision of the law  were to be consistently followed, the court-martial would lose all lubricants that oil its wheels. It would serve as a mere surplusage to our nation’s judicial system, standing yet put at the mercy of the High Court. About this a jurist has said:

The decision as to whether an alleged offence falling within this dual jurisdiction (and of which the civil police have cognizance) shall be tried by the civil or military rests, however, with the civil authority… The broad generally accepted principle is that any offence affecting the person or property of a civilian (or which a civilian is a co-accused in Nigeria with a serviceman) will normally be dealt with by the civil court. Offences entirely domestic to the military will normally be handed over for trial by the military. Each case, however, is considered on its merits and in applying these broad criteria, a number of considerations are also brought into account. Notably and in particular, the gravity of the offence … whether the offender was on duty or about his own affair.

In O’Callahan v. Parker,  a case involving courts-martial jurisdictions over civilian type offences, the petitioner had been convicted of attempted rape, housebreaking, and assault with intent to rape by a court-martial sitting in the then territory of Hawaii. The offences were committed while the petitioner was on evening pass, in civilian clothes and in a hotel away from his military post. The Supreme Court of the United State held that ‘the crime to be under military jurisdiction must be service connected …’ The purport of this decision is that courts-martial can only try those offences that are service connected and such is  to safeguard military men from being arbitrarily punished for civil offences.

By the ‘doctrine of compact’ therefore, a serviceman who commits an offence off the precinct of the barracks (that is among the civilian population) will be tried by the civil courts and punishment stipulated in the ordinary law of the land will be awarded to him where necessary. Where, on the other hand, the offence is committed within a military district, then, he will be tried under military law.

Taking the authors view in the quotation above, and in order to preserve courts-martial in Nigeria, it should be the case that while courts-martial should be seised of core military offences (that is offences unknown to our ordinary criminal law), both courts-martial and the Federal High Court should have jurisdiction over civil type offences stipulated in Ss. 104 – 114 of the AFA.

The mere fact that a court martial has jurisdiction to try a serviceman for offences committed by him does not mean that the verdict of a court-martial is final. While the question of jurisdiction may arise between a court-martial and a High Court, it can never arise with regard to a court-martial and the Court of Appeal or the Supreme Court!

 

      End Notes

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  1. O. H. Phillips. Constitutional and Administrative Law (London: Sweet and Maxwell 1987) p. 346
  2. See Anyanakpele v. Nigerian Army (2001) 16 NWLR (pt. 738)
  3. S. 251 (1) )p) and (3) of the 1999 Constitution
  4. Ibid. s. 252 (1)
  5. Ibid s. 272 (1) and (2)
  6. S. 193 of the AFA
  7. Ibid s. 170 (2)
  8. Ibid s. 170 (1)
  9. 395 U. S. 258 (1969)