THE CHALLENGES OF MILITARY JUSTICE AND
DISCIPLINE IN PEACE SUPPORT OPERATIONS: POSSIBLE AREAS OF MILITARY LAW REFORM IN
NIGERIA
BY
PROFESSOR MUHAMMED TAWFIQ LADAN (Ph.D)
DEPARTMENT OF PUBLIC LAW, FACULTY OF LAW,
AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA
Email: [email protected], [email protected] and [email protected]
Blog site: - http://mtladan.blogspot.com/
BEING A LECTURE DELIVERED AT:
THE NIGERIAN ARMY LAW SEMINAR TITLED: MILITARY LAW REFORM TO ENABLE THE NIGERIAN
ARMY MEET CONTEMPORARY CHALLENGES
ORGANIZED BY:
THE NIGERIAN ARMY HEADQUARTERS IN
COLLABORATION WITH THE NATIONAL JUDICIAL
INSTITUTE, ABUJA
DATE: - 14-17 AUGUST, 2011
VENUE: - ARMY HEADQUARTERS, ABUJA
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THE CHALLENGES OF MILITARY JUSTICE AND DISCIPLINE IN
PEACE SUPPORT OPERATIONS: - POSSIBLE AREAS OF MILITARY
LAW REFORM IN NIGERIA
BY
PROFESSOR MUHAMMED TAWFIQ LADAN (Ph.D)
INTRODUCTION
The following key terms that form the core of my topic have neither been defined
in the Armed Forces Act Cap. A. 20, LFN 2004 nor in the Armed Forces (Disciplinary
Proceedings) Special Provisions Act Cap A 22 or in the Code of Conduct for the Nigerian
Army Troops on Foreign Missions dated April 2002, launched in February 2010 at the
National Defence College, Abuja.
Hence this lecture aims at realizing the following objectives:
– To provide clarification of the following relevant key terms: - military
justice, military discipline and peace support operations;
– To identify some challenges relating to administration of military justice
and discipline in peace support operations;
– To conclude with some recommendations for possible areas of military law
reform in Nigeria.
1.
CONCEPTUAL CLARIFICATION OF KEY TERMS
This part of the lecture seeks to clarify the following terms relevant to the
lecture: 1.1
Notion of Military Justice
The term ‘Military Justice’ can be defined as the impartial, fair and non-
discriminatory application of the law to which military officers/armed forces personnel
are subject to.
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Question: - Is the notion of justice under military law in Nigeria necessarily
different from the one conceived of by the Supreme Court of Nigeria in the following
three cases: – First, that Justice in a criminal trial is a 3 way traffic: - Per Oputa JSC (rtd)
in Josiah v. The State (1985) INWLR 125 at p.140
Second, the case of Salawu Ajide v. Kadiri Kelani (1985) NWLR 248 at 269, Oputa
JSC (rtd) made the following pertinent remarks about the need for truth to prevail in
order to ensure that justice is done: “Justice is much more than a game of hide and
seek. It is an attempt to discover the truth, our human imperfections notwithstanding.”
Third, that justice is not about legal technicalities. It is about ensuring that
substantial justice is done between man and man and man and state. In Adeleke v.
Awoniyi (1962)1 ALL NLR 260, the Supreme Court pointed out that: - “The welfare of the
community is preserved when the public is satisfied with the standard of the
administration of justice.”
Contrary to the above Supreme Court idea of Justice in both civil and criminal
cases, Justice Hugo L. Black stated in Reid v. Covert (1957) 354 U.S.I that “military Justice
must of necessity be a rough form of justice, emphasizing summary procedure, speedy
convictions and stern penalties.”
With due respect to Justice Black, Justice in any form cannot be roughed nor can
Justice be rushed Justice and should not occasion a miscarriage of justice with the
resultant consequence of denial of fundamental human rights. See Osassona v. Ajayi
(2004) 14 NWLR (Pt.894) 467-693; Ojo v. Anibire (2004) 10 NWLR (Pt.882) 571.
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1.2
Military Discipline
The term ‘discipline’ in the context of military law refers to a code of conduct or
the practice of training armed forces personnel to obey rules, regulations and orders
and punishing them if they do not, in the best interest of one of the objectives of
military justice: - Discipline.
This idea of military discipline is best reflected in the cumulative provisions of
sections 45 to 120 of the Armed Forces Act relating to offences of misconduct in action,
mutiny, insubordination, absence from duty, conduct prejudicial to service discipline,
sexual and civil offences punishment, summary trial and court-martial.
Question: - Can the provisions of Section 103 of the Armed Forces Act, on
conduct to the prejudice of service discipline, and the Code of Conduct for Nigerian
Army Troops on Foreign Missions stand the test of section 36(12) of the 1999
Constitution which is to the effect that no person shall be convicted of any criminal
offence unless that offence is defined and the penalty therefor is prescribed in a written
law; and the Court of Appeal decision in Captain Asake v. Nigerian Army Council (2007) 1
NWLR (Pt. 1015) 408 CA on a similar provision under the repealed Nigeria Army Act,
1960?
In the above case, Capt. GNH Asake was a member of the Nigerian Contingent on
Operation Liberty to Liberia in 1991. He borrowed the sum of USD $300 from the one
Lance Corporal Yau Suleiman, his subordinate in military hierarchy. He failed to pay back
the said money, a conduct which the military authority termed “conduct prejudicial to
good order and military discipline. He was found guilty and dismissed. The question
arose as to whether borrowing money is an offence known to law? By virtue of section
33(12) of the 1979 Constitution, nobody can be convicted of any offence except that
created under a written law. In the instant case, borrowing of money by an officer from
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his subordinate is not expressly made an offence under section 71 of the Nigerian Army
Act, 1960 (Revised)
1.3
Peace Support Operations
Peace Support Operations (PSO) are multifunctional operations in which impartial
military activities are designed to create a secure environment and facilitate the efforts
of the civilian elements of the mission to create a self sustaining peace (Wilkinson, 2000:
63-69; Mackinlay, 1996). PSO may include peace keeping (PK) and peace enforcement
(PE) as well as conflict prevention, peacemaking, peace-building and humanitarian
operations.
There are three categories of peace operations in Africa the: peace operations
undertaken by the UN; those undertaken by the OAU and later by its successor
organisation the African Union; and peace operations undertaken by sub-regional
organizations like ECOWAS and SADC.
Over 80% of about 60,000 UN Peacekeepers deployed world wide were deployed
in Africa since the 1960s: - Liberia, Sierra-Leone, Cote d’Ivoire, Democratic Republic of
Congo, Western Sahara, Ethiopia-Eriteria, Burundi and Sudan.
2.
CHALLENGES
It is evident from the above that military justice and discipline apply to military
officers in times of both peace and war/armed conflict and in both domestic and
external peace support operations.
In the above context therefore, the following challenges have been identified: 5
2.1
Conformity of Military Law and Practice to Nigeria’s International Treaty Obligations.
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THE HOW OF DOMESTIC IMPLEMENTATION?
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Universal Jurisdiction and Duty to Punish Individuals
The Geneva Conventions Act Cap. G.3 Vol. 7 LFN 2004 covers persons of all
nationalities, regardless of the place where the offence is committed. Indeed the Act
states that any person may be proceeded against, tried and sentenced in Nigeria for an
offence committed outside the country, as if the crime had been committed in Nigeria.
The Act goes further to state categorically that for all purposes incidental to or
consequential on the trial or punishment, the offence shall be deemed to have been
committed in Nigeria (Sections 3-4 of the Act).
Nigeria as one of the High Contracting Parties to the Geneva Conventions has a
right to punish individuals violating international humanitarian law on the basis of
universal jurisdiction. Thus in addition to sections 3-4 and first schedule to the Geneva
conventions Act, section 130 (2) of the Armed Forces Act Cap. A.20 LFN 2004 has
conferred universal jurisdiction over war criminals to General Courts Martial. In
Conclusion therefore, the opinio Juris of Nigeria is supportive of the right to punish
individuals violating international humanitarian law and by extension the Rome Statute
on the basis of Universal Jurisdiction.
Note: The combined effect of the provisions of the Geneva Conventions Act and Section
130(2) of the Armed Forces Act is the guarantee of universal jurisdiction and duty to
punish individuals for violations of international humanitarian law.
NB: - But the scope of their application is limited to war crimes or IHL breaches. What of
the crimes of genocide and crimes against Humanity committed in PSO or in domestic
operations, whether in peace or armed conflict situation as defined in Articles 6 and 7 of
the Rome Statute of the ICC legally binding on Nigeria (Signed on 1st June 2000 and
ratified on 27th September 2001).
Obedience to Lawful Superior Command
Obedience to lawful superior command and standing orders: - Here the
combined effect of sections 56-57 of the Armed Forces Act is that disobedience by
junior military officers to lawful superior commands and standing orders is punishable
as an offence.
Question: - What constitutes a lawful superior command/standing order or
otherwise? Not defined in the Act. See Nwaogu v. State (1972) 3 S C 6; Udosen v. State
(2007) 4 N W L R (Pt. 1023) 125 S C; NAF v. Kamaldeen (2007) ALL FWLR (Pt. 361) 1676
SC – on the duty to disobey superior order that is knowingly unlawful or manifestly
illegal.
However, under Article 33 of the Rome Statute, a person is not relieved of
criminal responsibility by the fact that the crime was committed under order of a
Government or of a superior, whether military or civilian, unless the person was under a
legal obligation to obey the order, did not know the order was unlawful, and the order
was not manifestly unlawful. Any order to commit genocide or crimes against humanity
is deemed to be manifestly unlawful. How consistent with Article 33 of the Rome
Statute of the ICC are the provisions of sections 56 and 57 of the Nigerian Armed
Forces Act?
Enlistment/Recruitment of Children
NB: - Enlistment/Recruitment of children in the Nigeria Armed Forces below the
age of 18 years: - Is the combined effect of sections 28(2) and 29(3) of the Armed Forces
Act permitting recruitment of children below the age of 18 years with written
parental/guardian or LGA chairman consent under certain terms consistent with the
provisions of Section 34(1) and (2) of the Child Rights Act, 2003 (See Table 4 item 10
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above) which expressly prohibit the recruitment of children below 18 years into the
armed forces and children participation in hostilities or armed conflict. The CRA 2003 on
this subject domesticated also the 2000 Optional protocol to the UN Convention on the
Rights of the Child on the involvement of children in armed conflict (Nigeria signed on 89-2000 and ratified on 17 September 2010).
NB: - On the 2002/2010 Code of Conduct for Nigerian Army Troops on Foreign
Missions: - Item 7 (l) p. 6 that the Nigerian Army should behave by upholding and
observing the provisions of the Geneva Conventions.
Question: - What of the Additional Protocols of 1977 and the Rome Statute of
the ICC?
2.2
CHALLENGES ON THE STANDARD/QUALITY OF ADMINISTRATION OF MILITARY
JUSTICE AND DISCIPLINE.
Thus the practice under the military law, where the convening officer of a court
martial decides which charges should be brought against the soldier; which type of court
martial is most appropriate; appoints its members who are subordinate in rank to him
and directly or ultimately under his command; appoints the prosecuting and defending
officers is contrary to the well-established principle that an accused must be tried by
independent and impartial tribunal. (See Sections 123-133 of the Armed Forces Act).
Col. Umar Mohammed v. The Nigerian Army. The accused, Col Umar Mohammed,
was the Commander of the 2nd Amphibious Brigade, Port Harcourt. He was accused,
inter alia, of 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. He would direct the prosecution when not to object and even
introduced facts within his personal knowledge into the proceedings. He gave rulings on
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some occasions on issues raised by the prosecutor without giving the defence any
hearing. He issued threats of prosecution against the defence counsel on several
occasions during the trial and intimidated him to stop reference to authorities in
support of the defence. President became more incensed when questions were asked of
prosecution witnesses under cross examination and their answers showed that the
President himself had at some time in the past while he was the Commander of the 2 nd
Amphibious Brigade, Port Harcourt done the same thing for which the accused was
being prosecuted. From then on he completely took over the proceedings, playing the
role of prosecutor, witness and judge thus destabilizing the defence.
It was clear from the utterances of the President during the proceedings that his
mind was made up on the guilt of the accused and that he was merely trying to clear a
little doubt in his mind. The accused was not surprisingly convicted and sentenced to a
term if imprisonment. In quashing the conviction and sentence of the accused for
breach of the rule of fair hearing the Court of Appeal stated: 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. Col. Umar Mohammed v. The Nigerian Army (1998) 7 NWLR
(Pt.557) 232 CA.
In law, ‘condonation’ means a victim’s implied forgiveness for an offence by
treating the offender as if there had been no offence. Thus condone means to
voluntarily pardon or overlook. Where, a commanding officer stated that if the accused
had paid what he owned, there would be no trouble the law would presume that he
condoned the alleged act of the accused. Consequently, any subsequent trial and
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conviction of the accused by the Military Court would be a nullity. Asake v. Nigerian
Army Council (2007) 1 NWLR (Pt.1015) 408 CA.
Pursuant to section 149(1) of the Armed Forces Act 1994, an accused person who
is convicted by a court martial may, if he so desires, within three months after being
sentenced by a court martial and before the sentence is confirmed, submit to the
conforming authority any written matter which may reasonably affect the confirming
authority’s decision whether to disapprove a finding of guilty or to approve the
sentence. The effect of this rule of law is to subject the power of confirmation of
sentence to the right of the convict to file a petition where he believes that there are
errors in law affecting the legality of the trial.
Thus where the convict indicates his desire to file a petition, he must be given the
opportunity to compile portions or summaries of the record or copies of documentary
evidence offered or introduced at the trial to enable him prepare his case against the
finding of the court martial. Where, for instance, the confirming authority ratified the
sentence of the accused on the same day that he was convicted by the court martial,
the appellate court ruled that the accused was denied the opportunity to urge on the
confirming authority reasons why the finding of the court martial should not be
confirmed. It further ruled that the accused was denied the right to fair hearing as
enshrined in the Constitution. Therefore, the whole proceedings of the court martial
were declared a nullity. Yekini v. Nigeria Army (2002) 11 NWLR (Pt. 777) 127 CA;
Akinwale v. Nigerian Army (2001) 16 NWLR (Pt. 738) 109 CA; Gani v. Nigeria Army
(2001) (Unreported) CA/L/276/98 of 29th January 2001.
Appeals against the decisions of Military Courts lie to the Court of Appeal. The
law demands therefore that Military Courts must follow the rules of procedure during
criminal trials. In addition, the courts must state clearly the facts and evidential basis for
their decisions. These steps would assist the appellate court determine whether or not
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the trial court had been right in its approach to the case and the conclusion arrived at.
Asake v. Nigerian Army Council (2007) 1 NWLR (Pt.1015) 408 CA; Shehete v. The Nigerian
Air Force (2000) 15 NWLR (Pt.692) 868 CA.
3.
POSSIBLE AREAS OF MILITARY LAW REFORM
i.
Review of the Armed Forces Act, section 130(2) on jurisdiction of courtsmartial/military tribunal to try and punish military officers subject to the law of
war or armed conflict: - The general reference to the law of war or armed conflict
is too simplistic without any specification. Read together with item 7(l) p.6 of the
Code of Conduct for Nigerian Army Troops on Foreign Missions: - which refers to
the Geneva Conventions only to the exclusion of the Additional Protocols 1 – 2 of
1977 and the Rome Statute of the ICC sends wrong signals to military officers as
to the nature and scope of their code of conduct for behavior on PSO.
The disadvantage of the above general reference is that it requires the
courts-martial/military tribunal or judge of regular court to clarify and interpret
the law in the light of the provisions of international law, leaving the judiciary or
the military tribunal with considerable room for manoeuvre. The task is not made
easier by the fact that the definitions of war crimes contained in international
instruments may not correspond exactly to the type of formulation commonly
found in domestic legislation.
Hence the need for a repeal of the Geneva Conventions Act Cap. G.3 LFN
2004 to pave way for the domestic implementation of both the Geneva
Conventions and the Additional Protocols in the form of a ‘Consolidation Act’: which spells out inter alia, jurisdiction of courts, penalties and procedure. This
approach is necessary, otherwise offenders may have a technical loophole for
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escaping sanctions for grave breaches of the Additional Protocols (relating to the
fundamental issues of IHL): - the protection of the civilian population against
direct effects of hostilities; new techniques for ensuring the protection of war
victims against new destructive weapons and new types of armed conflict).
ii.
Section 78 of the Armed Forces Act on defilement of a girl as an offence is limited
to under 16 years. This needs to be consistent with the definition of a child for all
legal purposes set as a person below the age of 18 years under section 277 of the
Child Rights Act, 2003 (Consistent with the UN Convention on the Rights of the
Child).
iii.
Sections 28(2) and 29(3) of the Armed Forces Act on recruitment of children into
any unit of the Armed Forces needs to be in conformity with section 34(1) and (2)
of the CRA, 2003 etc.
CONCLUSION
It is evident from the above that military justice and discipline constitute the
kernel of military law applicable to armed forces personnel in both PSO and domestic
operations. The challenges and possible areas of reform identified above aimed at
improving the Code of Conduct/behavior of military officers in such operations by
ensuring their conformity to, domestic constitutional/ legal standards and, international
treaty obligations binding on Nigeria.
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REFERENCES
1. Armed Forces Act Cap. A. 20 LFN 2004
2. Armed Forces (Disciplinary Proceedings) Special Provisions Act Cap. A. 22 LFN
2004.
3. Ministry of Defence/Chief of Army Staff, Abuja (2002) Code of Conduct for
Nigerian Army Troops on Foreign Missions.
4. The Child Rights Act, 2003.
5. Ladan M. T., Report of Update Study of Nigerian Practice on Customary
International Humanitarian Law, 2002-2009 (2010) for the ICRC Abuja/Geneva.
6. Ladan M. T., Materials and Cases on Public International Law (2008) A.B.U. Press
Ltd, Zaria, Nigeria.
7. Ladan M. T., Introduction to Jurisprudence (2010) (revised) Malthouse Press Ltd,
Lagos.
8. Akinyemi O, Introduction to Military Law (2010) O.A.U. Press, Ile-Ife, Nigeria.
9. Constitution of the Federal Republic of Nigeria, 1999
10. Ladan M. T., Introduction to International Human Rights and Humanitarian Laws
(2001) A.B.U., Press Ltd, Zaria, Nigeria.
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