The Exclusive Original Jurisdiction of Military Justice System over Serving Military Personnel

By Col. BU Okorie (Rtd) Esq.

Introduction

1. Section 123 of the Armed Forces Act (AFA) provides that every allegation against a serving military personnel that he has committed an offence must first be reported to the Commanding Officer (CO), who shall first dispose of the case before any further necessary action by the Civil Law Enforcement Agency or Court. The exclusive original jurisdiction of the military justice system over erring service personnel is constitutionally shielded from all kinds of civil disturbance in every guise, be it nolle prosequi from the AGF or injunction from any civil court. See section 174 CFRN 1999 (as amended). This gives the military justice system the requisite freedom to enforce discipline within its ranks and file. The provision of section 123 of AFA, therefore, is a Law founded on empirical grounds such as functionality, necessity, and lex specialis. Permit me to address these grounds seriatim.

Functionality Ground

2. Imagine a situation where the terrorists have threatened to invade a certain village in Nigeria, and the President, who is the Commander in Chief (C-in-C), orders the Chief of Army Staff (COAS) to deal with the situation. The COAS orders the General Officer Commanding (GOC) within whose Area of Command (AOR) the village falls, and the GOC through the host Brigade Commander orders the Battalion Commander to crush the threatening terrorists, only to be told on D-Day that his platoon Commander and the only Armoured Car Driver (APC) of the unit are in the Civil Police detention and cannot be mustered for the operation, and the attack against the terrorists was thereby frustrated. This notwithstanding, the terrorists actually invaded the village as threatened and killed about 30 villagers who never bothered to escape because the army had assured them of their maximum protection. Whom would you hold liable for the frustration of the attack, the death of the villagers, and the preventable success of the terrorists?

3. The above scenario is just a tip of the iceberg among the grounds why Section 123 of the AFA provides that before an allegation against any serving military personnel that he has committed an offence is proceeded with by any Civil Law Enforcement Agency or Court, the allegation must be reported to the Commanding Officer of the Service Personnel who shall first investigate and dispose of the case. The same ground was among others that guided the Supreme Court of Canada in the case of R v. Genereux 2 to hold that:

“The purpose of a separate system of military tribunals is to allow the armed forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depend considerably on the willingness and readiness of a force of men and women to defend against a threat to the nation’s security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and frequently punished more severely than would be the case if a civilian were engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.”

Necessity

4. The Black’s Law Dictionary, 9th Edition, defines necessity as “a justification defence for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person’s actions.” This definition can be adopted for acceptance of the AFA provision at section 123 and affirmed in the case of Brig Gen Mohammed V. EFCC 3, in the context of the scenario above. It is a desideratum for the existence of a disciplined and battle-ready army.

The Nigerian legal community should borrow a leaf from the Canadian case of R. v. Genereux since the Nigerian legal justice system is permitted to borrow from foreign decisions when interpreting identical statutes. Particularly when such foreign and judicious decisions like that of R v. Genereux above will positively expand the frontier of our jurisprudence. See Stanbic IBTC Bank V Long-term Global Capital Ltd & Ors 4 and Rivers State V.A-G, Akwa Ibom State 5.

Doctrine of Stare Decisis

5. Affirming the provision of Section 123 of AFA in the case of Mohammed v. EFCC, the Court of Appeal held that:

“By virtue of the Armed Forces Act, 2004, there was indeed a condition precedent which was that the allegation should have been reported to the Commanding Officer, and that if this was failed to be done, it denies the Court of Jurisdiction and the case of Madukolu v. Nkemdili applies.”

The above decision was rightly guided by the doctrine of stare decisis, which all civilised judicial systems adore. The Court in the case of Brig. Gen Mohammed v. EFCC judiciously applied the ratio decidendi from an earlier case of Hon. Justice Nganjiwa v. FRN 6, where it had been held that:

“A serving judicial officer cannot be subjected to a criminal prosecution without first complying with the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council.”

Doctrine of Lex Specialis.

6. The doctrine of lex specialis relates to the interpretation of laws, and it can apply in both international and domestic practice. According to the doctrine, a law governing a specific subject matter (Lex Specialis) overrides a law which governs general matters (rendered in Latin as Lex Specialis derogat legi generali). This is to say that although both Hon Justice Nganji and Brig Gen Mohammed in the said cases above are subject to the general civil justice system applicable to all Nigerians and to the special laws of their different professions, the law of their professions must apply to them first before the general law applicable to all Nigerians. This reasoning, as demonstrated in the functional ground, accords with both the intention and purpose of the law.

7. Conclusion

The fact that the exclusive original jurisdiction of the military justice system over serving military personnel is a statutory provision which has been affirmed in judicial authorities has been enunciated. Stakeholders and all patriotic Nigerians are therefore requested to accept the law as it is because what the courts actually decide, rather than what is in the mind of stakeholders, is eventually the law.

Source: BarristerNG