Femi Falana on Nigerian military justice

Femi Falana SAN

Femi Falana, a leading Nigerian attorney, has written this lengthy Premium Times analysis of the military justice system and human rights in that country. His recommendations:

i. To guarantee the independence and impartiality of military courts they should be headed by retired judges who will sit with other members appointed by the military authorities. This is only way to enhance discipline in the armed forces as the appellate courts have recently set aside not less that 80 percent of cases decided by courts-martial; 

ii. The confirmation of the findings of military courts should be dispensed with as it has frustrated convicted personnel from exercising the right of appeal to the Court of Appeal within the three months allowed by law; 

iii. Since every person charged with a criminal offence is entitled to be given adequate facilities by the State for the preparation of their defence, the prosecution should be compelled to file proof of evidence together with the charge. In other words, the witness statements of all prosecution witnesses and relevant documents should be made available to the defendants; 

iv. As every person charged with a criminal offence is entitled to legal representation even before making a statement in a police station, service personnel charged by their commanders with committing criminal offences or misconduct should be allowed to defend themselves in person or by legal practitioners of their choice; 

v. Since every defendant in a criminal trial is presumed innocent until the contrary is proved by the prosecution, military courts should respect the fundamental right of defendants to personal liberty by admitting them to bail in deserving cases, either conditionally or unconditionally; 

vi. The authorities of the Armed forces should sanction military personnel who violate the fundamental rights of the Nigerian people. The case of Ransome-Kuti v Attorney-General of the Federation (1985) 2 N.W.L.R.(Pt. 6) 211 was dismissed on the ground of rex peccare non facit (the king can do no wrong). But as the law has changed the military invasions of Odi in Bayelsa State, Zaki Biam in Benue State and Gbaramotu in Delta State, the Federal High Court awarded reparation of about N200 billion. Soldiers whose fundamental rights are violated are also entitled to demand for payment of damages. Thus, in Akeem [v]. Federal Republic of Nigeria the ECOWAS Court awarded N5 million in favour of a soldier for illegal detention in a military barracks. In Okereke v Rear Admiral Arogundade, the applica[]t[] was awarded N120 million damages by the Lagos high court for the violation of her fundamental right to dignity. To arrest the ugly development, the military personnel indicted by the courts should be sanctioned and made to pay a percentage of the damages awarded to victims of human rights violations.