The Nigerian Legal System under the Military Government


The Nigerian Legal System under the Military Government

The geographic entity now called Nigeria was in early history an aggregation of widely disintegrated independent settlements. 

By development, and conquest, the settlements metamorphosed into kingdoms, empires, and principalities, which the British constituted into Protectorates of Northern Nigeria (1900) and the Colony and Protectorate of Southern Nigeria (1906). Both protectorates amalgamated in 1914 to form the present day Nigeria. 

Monarchial rule  was established from (1841-1960), Parliamentary (1960-63), Republican (1963-65), Military dictatorship 1966-79, 1983-1999, except for the brief diarchy in August-September 1992 and Presidentialism 1979-83 and from 1999 to date.

Before the advent of the colonial era, the political machinery and legal institution were indigenous to the people. The prevalent law was the customary law. Colonization brought in its train new legal machinery known to the colonizing powers. English types of courts were set up and they applied the Common Law of England, and the doctrines of Equity.

In this post, you will be able to know the background knowledge of the duties, powers and liability of the members and officers of the armed forces. This is to serve as a prelude to dealing with the peculiarities arising out of a revolutionary situation in relation to administration of Justice.


Also read: Idea of law: Schools of Thought

The Military

Pre-Contemporary Times

The diverse settlements that fused into Nigeria had a sort of local armies and soldiery. Their weapons were bows and arrows, spears, swords, daggers, shields, clubs and dane guns. History has recorded a number of encounters among these tribal native soldiers and between them and British forces. Examples: Bini Expedition, Ijeba expedition, Fulani Wars, Gbrohimi expedition.

Britain did not have any standing Army until relatively recent times. There were the feudal armies raised by the system of land tenure, then the king’s commission of array– a form of conscription into the army, under King Edward I and compulsory military service during the wars of Roses, Oliver Cromwells “Ironsides” ruled during the commonwealth. The kings kept personal bodyguards. The Bill of Rights 1689 prohibited the maintenance of a standing Army.


Modern Times

Prior to 1955, The Army Act, Air Force Act and other Acts governing the Reserve and Auxiliary Forces allowed the State to maintain the Army and the Air Force in peace time. The Act was passed from year to year and later at five yearly intervals, authorizing the crown to maintain an Army in time of Peace upon an annual resolution passed by Parliament to that effect. The Navy was maintained under the Royal Prerogative and by voluntary enlistment. The Bill of rights provided a constitutional safeguard against maintenance of the Army and Air Force in peace time without parliamentary approval.

Now however, the Constitution of the Federal Republic of Nigeria provides for establishment of the Armed Forces for the federation, which shall consist of an Army, a Navy, an Air Force and such other branches of the armed forces as the Act of National Assembly may establish.


Duties of the Armed Forces

The purpose of the Armed forces is to:

(a) Defend Nigeria from external aggression

(b) Maintain its territorial integrity and secure its borders from violation on land, sea or air.

(c) Suppress insurrection and act in aid of civil authorities to restore order when called upon to do so by the President but subject to such conditions as may be prescribed by an Act of the National Assembly and

(d) Perform such other functions as may be prescribed by the Act of the National Assembly.

The Army Act charged the military with

(i) The defence of and maintenance of order in Nigeria

(ii) Such other duties as may be, from time to time, defined by the

Head of State e.g. performing such military duties or undertaking course of instruction training or employment outside Nigeria.


Statutory Powers of the Armed Forces

The armed Forces and Police (Special Powers) Act 1967 conferred on members of the Armed forces and Police Officers, the power of arrest without warrant, and power to enter and search any premises at any time without a warrant. The Chief of Staff of the Armed Forces or the Inspector General of Police may also exercise power to order the detention in prison or police station, of trouble makers until the order is revoked. The Act also conferred on every member of the Armed Forces the powers and immunities of a police officer.

As citizens, the members of the Armed Forces have powers to arrest without warrant, any person who in his view commits an indictable offence or who, prima facie, commits at night, a misdemeanor. They or their servants may arrest any person they find committing an offence involving injury to their property.

The President is the Commander-in-Chief of the Armed forces. He enjoys the power to determine the operational use of the armed forces and may in writing delegate such powers and impose such conditions as he thinks fit.

Superior Orders

Members of the Armed forces have a duty to obey implicitly, the orders of their superior. Both Lord Mansfield and Lord Loughborough are in agreement that “a subordinate officer must not judge of the danger, proprietary, expediency or consequence of the order he receives; he must obey, nothing can excuse him but a physical impossibility, … The first, second and third parts of a soldier is obedience.”

The Mutiny Act proves that a refusal to obey military orders of one’s superior officer is a capital offence triable before a Court Martial, but under the Army Act, a soldier may only obey “lawful commands”. However, a superior order per se is an invalid defence especially where the orders are unlawful. In R. v. Smith (1900) it was held that if a soldier honestly believed he was doing his duty in carrying out superior orders and if the orders were not manifestly illegal, he would be immune from responsibility. The basis for this decision is explainable on other grounds of mistake or lack of mens rea.

It would appear, however, that if an order is manifestly wanton and reckless, any soldier who carries out such superior orders would be liable even before the normal court. In The State v. Pius Nwaogu & Anor, the two accused persons were ‘biafran’ army. They received orders from a major to apprehend the deceased soldier – deserter. The first accused pleaded a superior order that the deceased be produced “dead or alive”.

The Court per Agbakoba J. has this to say … a soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly lawful. This proposition may seem harsh but principles of law are evolved for general application although … the test in each case must be objective…The order to eliminate the deceased was given by an officer of an illegal regime; his orders therefore are necessarily unlawful and obedience to them involves a violation of the law and the defence of supreme orders is untenable.

Although the Supreme Court affirmed the judgement it was on different grounds.

The Supreme Court was silent on vital issues such as:

(i) What the attitude of court would be, if the order were from a superior officer of a “lawful” regime.

(ii) Whether there are no situations when an officer of an illegal regime can give a lawful order.

(iii) Acid test of the “unlawfulness” of a superior order of an officer of a lawful or unlawful regime. Willes J, in Keighley v. Bill (1866) expressed the view that superior orders are an absolute justification in time of actual war … unless they were such as could not legally be given … An officer or soldier, acting under the orders of his superior not being necessarily or manifestly illegal would be justified by his orders.


Military and Public Service

Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 defined “Public Service of the Federation as:  “the service of the federation in any capacity in respect of the government of the federation and includes service as members or  officers of the armed forces of the federation or the Nigeria Police Force  or other government security agencies established by law”.


Armed Forces and Public Disturbance

Many a time the military are called upon to quell riots or suppress public disturbance. Example is the military action in Kano, Kaduna and Yola during the Matsaitine Riots, the military operation in the Niger-Delta. 

It is the duty of the government, all executive officers and the general public to take appropriate measures as are necessary to bring public disturbance under control but such measures must neither be cruel nor excessive.

The Civil War began with Police action and limited military intervention before it escalated into full scale military operation. In these situations, the military are called in, not because they are soldiers, but as members of the public who are more skilled in the use of firearm.


Armed Forces and Threats to National Safety

When the nation is under threat, the executive organ of government may use prerogative powers of a more or less unlimited extent to counteract the threats. The amount of force is determined by the gravity of threat offered. Extreme measures as are necessary in the particular circumstance may be permitted and operatives may be excused of any irregularities and liabilities by subsequent Act of Indemnity.

Where immunity has not been conferred, the court is competent to enquire whether or not the Executive and the military had acted in excess of what the emergency demanded and perhaps redress any tort committed.

In Ex Parte Marais, the appellant was detained in South Africa by the Military authority during extreme crisis. He unsuccessfully sued the military. The Privy Council also dismissed his appeal and it would appear from the reasoning of the Lord Privy Councilors that the Executives and the military who are on the spot are best judges of what extra ordinary measures should be taken.


Conclusion on the Nigerian Legal System under the Military Government

The Armed forces of Nigeria assumed the rulership of Nigeria in 1966 – 79 and 1983 – 99 except in August – September, 1992.

In this article, you learnt about the impact of the Armed Forces Administration had in the Nigerian legal system, which it employed in situations of public disturbances and threat to National safety and survival.

Perhaps you can hazard a comparism of the development of Nigerian legal system under military and under civil dispensation.

The Military Government and the Nigerian Legal System, we have defined the technical terms, and looked into the powers, duties and liability of officers or member of the armed forces in the official and private capacities. In the our post we shall deal with the nature of military administration.

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