Military Coup and Court Martial: Is Falana Right?

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com

Introduction

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

I read with interest, Learned Senior Advocate, Mr Femi Falana’s  article, “Why Coup Suspects Cannot Be Tried in a Military Tribunal” on the back page of This Day’s February 4, 2026 publication. I certainly agree with Mr Falana that coup plotting is indeed, a grave offence, and anyone accused of such a heinous crime of trying to violently overthrow a democratic government, should be prosecuted to the fullest extent of the law.

Mr Falana listed two categories of people, who allegedly planned a coup to overthrow the Tinubu administration last year – Military Officers from the rank of Captain to Brigadier General, and their Civilian collaborators. The Senior Advocate then cited Section 251(2) of the Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) in support of his assertion that all the alleged coup plotters, both Military and Civilian, can only be tried at the Federal High Court (FHC) under Section 41 of the Criminal Code Act, as Section 251(2) of the Constitution provides that the FHC shall exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.

The Argument with SKB: Are there Exceptions to Section 251(2) of the Constitution?

It is certainly logical to conclude that Section 251(2) of the Constitution applies to all Nigerians. It singles out treason, treasonable felony and allied offences out of all the criminal offences, and uses the word “shall” to provide that the FHC has jurisdiction to try these offences. Nevertheless, this is where the argument divides into two.

I got into a debate on this issue with our Columnist, Stephen Kola-Balogun (SKB). Like Mr Falana, SKB believes that, whether Military or Civilian, Section 251(2) of the Constitution provides that treasonable cases must be tried at the FHC, and that the use of the word ‘shall’ in the provision, makes it mandatory, without exception. But, in BPS Construction & Engineering Co. Ltd v FCDA (2017) LPELR-42516(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Supreme Court held that: “It is true that generally, the word “shall” is interpreted in its mandatory sense. However, whether the word is used in its mandatory or directory sense, depends on the context in which it is used. The word “shall” can also mean “may”, where the context so admits”.

In the case of the civil causes listed in the preceding Section 251(1) of the Constitution, this provision clearly gives the FHC power to exercise jurisdiction ‘to the exclusion of any other court’. This simply means that, in the causes listed in Section 251(1) of the Constitution, no other court but the FHC, is empowered to hear them. In Rivers State House of Assembly & Anor v Government of Rivers State & Ors (2025) LPELR-80539(SC) per Ibrahim Mohammed Musa Saulawa, JSC, the Supreme Court held inter alia thus: “….the term exclusive jurisdiction means a Court’s power to determine or adjudicate an action or class of actions, to the exclusion of all other Courts”.

I commented to SKB that the key words in Section 251(1) & (2) conferring jurisdiction on the FHC are similar, aside from the magic words that confer ‘exclusive jurisdiction’ on the FHC in Section 251(1) of the Constitution, which are clearly absent from Section 251(2). I then asked SKB whether this could mean that, though jurisdiction is conferred on the FHC to try treasonable offences, there are other courts that could/may have concurrent jurisdiction with the FHC to try treason, treasonable felony and allied offences, such as the Court Martial? The rationale behind this line of thought is: (1) ‘shall’ is also used in 251(1), but reinforced and made certain with ‘to the exclusion of any other court’, unlike 251(2); if ‘shall’ is used in its mandatory sense, why the need for reinforcement? (2) that the absence of ‘to the exclusion of any other court’ in 251(2) could mean that ‘shall’ isn’t being used in its mandatory sense in Section 251(2), but as ‘may’, thereby allowing other courts to have jurisdiction in 251(2) with its absence therefrom. In Buhari & Anor v Obasanjo & Ors (2005) LPELR-815(SC) per Dennis Onyejife Edozie, JSC, the Supreme Court held thus: “It is settled law that, where the wordings of a statute are clear and unambiguous, the court must give them their plain and ordinary meaning: see Dominic Onuorah Ifezue v Livinus Mbadugha and Anor. (1984) 1 SCNLR 79, (1984) 5 SC 79; A.-G., Bendel State v A.-G., Federation (1982) 3 N.C.L.R”.

I submit that Section 251(2) of the Constitution is clear and unambiguous in its provision, and must therefore, be given its plain and ordinary meaning which is that, it gives the FHC the power to exercise jurisdiction in treasonable offences. It however, may not confer ‘exclusive jurisdiction’ on the FHC in this regard, and trying to do so may be tantamount to making an addition to Section 251(2), without amending it by following due process.

Umoru Mandara v AGF (1984) 4 S.C.8 cited by Mr Falana, a case of treason related charges, happened during the military era, long before the 1999 Constitution, when Tribunals were given more power, treasonable offences were tried in camera under Military Decrees and the FHC’s jurisdiction was limited in criminal matters, and it didn’t have the jurisdiction to try treasonable cases simpliciter. Today, the FHC has the jurisdiction to try such cases.

Media Rights Agenda v Nigeria (2000) AHRLR 5 also cited by Mr Falana, had to do with Civilians being tried in Military Tribunals. The African Commission declared that Military Tribunals shouldn’t have any jurisdiction over civilians, under any circumstances; I concur, and do not envisage a situation in 2026 in which alleged civilian coup plotters can/will be tried by a Court Martial, when they are not military personnel, and generally not subject to the Armed Forces Act LFN 2004 (AFA), that is, ‘Service Law’, except in specific circumstances such as those mentioned in Section 146 of the AFA which concern offences that a civilian may commit, such as refusing to appear as a Witness in the Court Martial when summoned to do so, or insulting members of the Court Martial, or doing something that would generally be considered to be contempt in a regular court of law.

Court Martial

Section 218(4)(b) of the Constitution empowers to the National Assembly (NASS) to inter alia, make laws for the disciplinary control of the Armed Forces of the Federation – the AFA is that law. The Court Martial, established by the AFA, is a military judicial court set up whenever required, for the discipline and punishment of members of the Armed Forces, including when they are accused of committing criminal offences. It is not the same as the Police Orderly Room Trial process, or that of the National Judicial Council for the Judges, which are administrative bodies for internal discipline. The Court Martial has the status of a High Court, as once convictions of the Court Martial are confirmed by the Army Council, appeals lie from there to the Court of Appeal, and ultimately to the Supreme Court – see Section 183 of the AFA.

Sections 104-113 of the AFA list crimes (referred to as ‘civil offences’ in the AFA) such as murder, manslaughter, forgery etc, that constitute offences under the AFA and can be tried by the Court Martial. Like Mr Falana stated, treason and allied offences are not expressly listed in the AFA. SKB felt that the fact that treason and allied offences are not expressly listed with the others in the AFA, and separately considered in Section 251(2) of the Constitution, translates into them being off limits for the Court Martial, particularly because the Constitution is supreme (see Section 1(1) & (3) thereof).

But, I directed SKB to Section 114(1) of the AFA, an omnibus clause which covers all ‘civil offences’ that are not expressly listed in the AFA such as treason, treasonable felony etc, and Section 114(2) which defines a civil offence as “…. an act or omission punishable as an offence under the penal provisions of any law enacted in or applicable to Nigeria….”. Section 114(3)(a) & (b) then expressly prescribes the death penalty for treason and murder, and other punishments prescribed by civil courts for lesser offences, and Section 118(a) & (b) also expressly empowers the Court Martial to award the death sentence and imprisonment, respectively.

Nature of Court Martial

In Olowu v Nigerian Navy (2011) LPELR-3127(SC) per Muhammad Saifullahi Muntaka-Coomassie, JSC, the Supreme Court held thus: “….the military Court Martial is unlike the conventional Court. Courts Martial operate a criminal procedure akin to jury trial”. In Iberi (Rtd) v AGF (2013) LPELR-20278(CA) per Rita Nosakhare Pemu, JCA, the Court of Appeal mentioned the two types of Court Martial thus: “Section 129 of the Armed Forces Act specifies two types of Court Martial. They are: Section 129 (a) A general Court Martial consisting of a President and not less than four members, a waiting member, a liaison officer and a Judge Advocate (b) A special Court Martial consisting of a President and not less than two members, a waiting member, a liaison officer and a Judge Advocate”.

Even though the Court Martial may not operate strictly like a Nigerian High Court with the involvement of a lay people and a jury type trial, in Samual & Ors v Nigerian Army (2006) LPELR-11751(CA) per Alfred Pearson Eyewunmi Awala, JCA, the Court of Appeal held that: “Court Martial is defined by Osborn’s Concise Law Dictionary Ninth Edition at page 111 as a “Court convened by or under the military authority of a State, to try an offence against military or naval men for indiscipline, or against the ordinary law of the land committed by a solider or sailor in service. There is an appeal to a Court Martial Appeal Court under the Court-Martial (Appeal) Act of 1968 (as amended) in England”. In this country, Appeal is to the Court of Appeal then to the Supreme Court, pursuant to the Armed Forces Decree of 1993 and confirmed by the Nigerian Constitution of 1999. The Court is a creation of the Nigerian Constitution of 1999 like the High Court, it is therefore, a Court of records. A Court Martial is usually an ad hoc military Court, convened by or under the military authority as aforesaid”.

The alleged Military Coup plotters will probably be tried by the General Court Martial, which appears to try more serious offences. It must consist of at least seven members, to be able to prescribe the maximum sentence of death – see Section 130 of the AFA. SKB found it unacceptable that in a democratic setting, members of the Armed Forces should be answerable to a Military Court, for such a grievous offence against the Nigerian State. He stood his ground that things have changed, and the Military should be subject to the FHC for a crime as serious as this, even if the Court Martial is able to try lesser crimes.

Conclusion

In conclusion, I cannot agree more with Mr Femi Falana, SAN, that the alleged Civilian coup plotters who are accused of trying to overthrow the Tinubu administration, cannot be tried by the Court Martial. Their cases can be separated from that of their Military Cohorts, and brought before the FHC.

But, what about  the prosecution of members of the Armed Forces? By reason of the foregoing, are there are enough grounds, both constitutionally and statutorily, to support the fact that members of the Armed Forces accused of coup plotting, can be tried by a Court Martial, and not the FHC? Or must they be tried at the FHC? Or should Section 251(2) of the Constitution be amended for better clarity, so that it provides that only the FHC has exclusive jurisdiction to try treasonable offences, in all circumstances? I recall that this issue was raised by Human Rights Activists in the aftermath of the #EndBadGovernance Protest in 2024, when 38 out of the 75 Youngsters arraigned at the FHC for treasonable offences, were said to be Minors between the age of 12 & 15 (see Sections 21 & 494 of the Child’s Rights Act 2003 and Administration of Criminal Justice Act 2015, respectively, on the categorisation of those less than age 18), insisting that they should have been taken to Family Court within the Children’s Justice System. Kindly, share your views on this, dear colleagues.