COURT MARTIAL

Court martial may be defined as a judicial court where members of the Armed Forces accused of offences against military law are tried. Courts martial are established by the Armed Forces Act (AFA) which is a consolidation of already existing legislations on the subject such as the Nigerian Air Force Act, Navy Act, etc.

There are two types of courts martial and these include:

·         General Court Martial 

·         Special Court Martial 

MEMBERSHIP

The General Court Martial consists of a President, at least 4 members, a waiting member, a liaison officer and a judge advocate while the Special Court Martial consists of a President, at least 2 members, a waiting member, a liaison officer and a judge advocate. A person may not be appointed a member of a Court Martial unless he is subject to Service Law and has been an officer for a period of not less than 5 years- section 133(2) AFA.  An officer who convened a court martial cannot be a member or president of that court martial- section 134(1) AFA. An officer of a lower rank cannot convict an accused who is of a higher rank- S.133(3); OKORO V. NIGERIAN ARMY (2000) 3 NWLR (Pt. 647); ZAKARI v NIGERIAN ARMY (2015) 5 SCM (Page 252-281). This means that an officer of any of the services cannot be tried by a Court Martial whose membership includes an officer of a rank lower than his. In Okoro v. Nigerian Army Council supra, a Court Martial constituted by members who included two captains tried and convicted a Major. The Court of Appeal held that by virtue of Section 133 of the Armed Forces Act, an officer cannot be tried by a Court Martial constituted by officers of a lower rank.

The President of a Court Martial shall not be under the rank of a Major or similar rank in any of the other services. Where it is not possible to have a Major as a President of a Court Martial, a Captain or the corresponding rank in any of the services may be appointed.

The duty of the Judge Advocate is to guide and advise the Court Martial on the Rules of Evidence and Practice and Procedure.  He does not have a vote in the decision of the court martial. 

The waiting member, liaison officer and judge advocate are not taken into consideration when the quorum of the court martial is in issue. This was held in the Supreme Court case of OBISI v CHIEF OF NAVAL STAFF (2004) 6 SCM, 31. As regards the position of a judge advocate, the Supreme Court in THE NIGERIAN ARMY v DODO (2012) 12 SCM @ 268, held that by a simple interpretation of the provision of section 129 (a) of the Armed Forces Act, the tabulation and arrangement of the President, Members and Judge Advocate suggests that the Judge Advocate is not a member of the general court martial per se, as he is not lumped together with the members. A waiting member is one who is present in case a regular member is ill or unavoidably absent. As such, the absence of a waiting member, judge advocate and a liaison officer will not nullify its proceedings. See OBISI v. CHIEF OF NAVAL STAFF supra. 

JURISDICTION

Section 130 of the Armed Forces Act gives the Court Martial jurisdiction over persons who are subject to Service Law; these include officers of the Army, Navy and Air Force. It does not include officers of the Police Force, NDLEA, Customs and Immigration and NAFDAC. See OLATUNJI v. STATE (2003) 14 NWLR (Pt. 839) 138.A General Court Martial has no jurisdiction to impose a sentence of death unless it consists of at least 7 members. A Special Court Martial has the same powers as a General Court Martial but where it is constituted by only two members, it cannot impose a sentence of death or a sentence of imprisonment which exceeds one year.  

Sections 45 to 114 of the Armed Forces Act contain the list of offences which can be tried by a Court Martial. Some of the military offences triable by a Court Martial include aiding the enemy, cowardly behaviour, mutiny, insubordination, absence from duty, malingering and drunkenness, sodomy, etc. The civil offences triable by a Court Martial are the regular criminal offences in civil society such as assault, manslaughter, robbery, extortion etc.  If a serving officer is tried by a Court Martial for a civil offence, the officer can still be tried for the same offence by the regular courts. However, in imposing a sentence, the regular court shall take into consideration the sentence already passed by the Court Martial. On the contrary, if a regular court tries a person who is subject to service law for a civil offence, the Court Martial can no longer try the officer for the same offence- sections 170 & 171. The decision or verdict of a Court Martial is arrived at by a simple majority of the members of the Court (remember that the Judge Advocate, the waiting member and the liaison officer do not have the right to vote).

In the case of an equality of votes, that is, where there is a tie, the accused persons shall be acquitted. Where there is equality of votes on the sentence or any question other than findings, the President of the Court Martial shall have a second or casting vote- S.140(5) AFA. Any death sentence passed by a Court Martial cannot be executed except with the approval of the President and Commander-in-Chief of the Armed Forces. Other sentences of a Court Martial are subject to confirmation by the appropriate superior authority who convened the Court Martial.

POWER TO CONVENE A COURT MARTIAL

Section 131 of the AFA provides that only an appropriate superior authority can convene a Court Martial. These include:  

1.      The President.

2.      Chief of Defence Staff

3.      The Service Chiefs.

4.    A General Officer Commanding or a corresponding command.

5.      A Brigade Commander or corresponding Command.

In special circumstances the senior officer of a detached unit may be authorized by the appropriate superior authority to convene a Court Martial. See Nigerian Air Force v. Obiosa (2003) 4 NWLR (PT. 810) 233.

Contrary to the earlier Supreme Court decision in Nigerian Air Force v. Shekete (2002) 12 NILR 131, the Supreme Court in Nigerian Air Force v. Obiosa (SUPRA) held that the authority to convene a Court Martial, General or Special, may be delegated by the appropriate superior authority.  In order to do this, the authority given to the delegate must be in writing and must be signed by the appropriate superior authority.

APPEALS

Previously, appeals against the decision of a Court Martial went to the Armed Forces Appeal Disciplinary Committee but presently any person who is aggrieved by the decision of a Court Martial can appeal to the Court of Appeal. Nigeria Air Force v Shekete (supra). It was held by the Supreme Court in NIGERIAN ARMY v YAKUBU (2013) 5 SCM (Page 187 @206) that the Court of Appeal, to the exclusion of any other court, has the jurisdiction to entertain appeals from the decision of the General Court Martial. See also section 240 CFRN 1999.  

TIME LIMIT FOR TRIALS AT COURT MARTIAL

Trial must be begun against a person WITHIN THREE YEARS of the commission of an offence. In calculating the period of three years, the period of illegal absence, or period spent as prisoner of war would not be taken into consideration. If a person was still subject to service law at the time of commission of an offence, such a person can still be tried by Court Martial notwithstanding that he is no longer subject to service law- Section 168(1) AFA. The trial must be begun against the person within 3 months after retirement or removal- Section 169(2) AFA; OLATUNJI V. STATE (supra). The time limit does not however apply to the following:

1.      civil offence committed outside Nigeria EXCEPT with the consent of the AGF

2.      civil offence with a time limit. E.g. treason- section 169(1)(a) AFA

3.      With respect to the offence of mutiny, failure to suppress mutiny or secession, an officer can be tried at any time after retirement.

DISSOLUTION OF COURT MARTIAL

A court martial is convened when needed and dissolved at the conclusion of the trial and it can be dissolved when:

1.      a convening officer feels is necessary to do so.

2.      a membership falls below minimum by reason of death sentence

3.      the president of the court martial dies/unable to attend or be replaced

4.      sickness or death of the accused person.

If a court martial is dissolved, another one can be set up.

NOTE: a lawyer has the right of audience before a court martial. See Section 36(6)(c) CFRN and Yakubu v. Chief of Naval Staff (3 PLR/2003/167)