Why a Court-Martial Cannot Try Coup Suspects: Falana’s Legal Argument Explained
In a significant legal intervention, renowned human rights lawyer and Senior Advocate of Nigeria, Femi Falana, has called on the Attorney-General of the Federation and Minister of Justice, Lateef Fagbemi, to immediately halt the ongoing trial of 36 suspected coup plotters before a General Court Martial. Falana argues that the military tribunal lacks the constitutional jurisdiction to hear such cases, and that only the Federal High Court can lawfully adjudicate on charges of treason and treasonable felony.
This article unpacks Falana’s legal reasoning, explores the constitutional provisions at stake, and provides historical context to help readers understand why this case matters for Nigeria’s rule of law.
The Core Legal Argument: Jurisdiction Belongs to the Federal High Court
In a statement issued on Friday, Falana urged the AGF to invoke his constitutional powers under Section 174 of the 1999 Constitution to terminate what he described as an “illegal charge” against the accused military officers. Section 174 empowers the Attorney-General to discontinue criminal proceedings at any stage before judgment, if doing so is in the public interest.
Falana’s central argument is straightforward: only the Federal High Court has the jurisdiction to try offences such as treason and treasonable felony. He cites Section 251 of the Constitution, which explicitly vests the Federal High Court with exclusive jurisdiction over matters relating to the federal government, including terrorism, treason, and related offences. A General Court Martial, by contrast, is a military tribunal designed to try service offences—such as desertion, insubordination, or conduct prejudicial to good order—not civilian crimes like coup plotting.
To put it simply: a court-martial is like a school’s disciplinary committee—it can punish students for breaking school rules, but it cannot try them for murder. Similarly, a military tribunal can discipline soldiers for military infractions, but it cannot adjudicate on crimes that strike at the heart of the state’s constitutional order.
Equality Before the Law: A Fundamental Principle Under Threat
Falana also raised a critical concern about equal treatment under the law. He noted that six of the suspects are being tried in a Federal High Court, while the remaining 36 face a General Court Martial for the same alleged offence. This dual-track approach, he argued, violates the constitutional guarantee of equality before the law enshrined in Section 42 of the Constitution.
“Since the Constitution guarantees equality of citizens before the law, the planned trial of six suspects in the Federal High Court and 36 others before a General Court Martial for the same offence cannot be justified,” Falana stated.
Imagine two students caught cheating on the same exam: one is sent to the principal’s office, the other to a kangaroo court run by fellow students. That is the kind of legal inconsistency Falana is warning against. For justice to be credible, all accused persons must face the same tribunal, governed by the same rules of evidence and procedure.
Historical Precedents: Even Military Regimes Knew Better
Falana drew on Nigeria’s own history to strengthen his argument. He pointed out that even during periods of military rule—when the constitution was suspended and decrees held sway—coup suspects were not tried by courts-martial. Instead, they were tried by special military tribunals established under specific decrees.
For example:
- 1976: Officers implicated in the Dimka coup were tried by a special tribunal, not a court-martial.
- 1990: Suspects in the Orkar coup faced a special military tribunal.
- 1995: Those accused of plotting against General Sani Abacha were also tried by a special tribunal.
These tribunals were created by decree precisely because the military recognized that a standard court-martial lacked the jurisdiction and procedural safeguards to handle such grave political offences. If military regimes—which operated outside the constitution—understood this limitation, Falana argues, it is even more indefensible for a democratic government to ignore it.
The Return to Democracy: Why Decrees No Longer Apply
With the return to civilian rule in 1999, Nigeria adopted a new constitution that abolished all military decrees. The legal framework for special military tribunals no longer exists. As Falana explained, “only constitutionally recognised courts—particularly the Federal High Court—can validly adjudicate on treason-related offences.”
This is not a technicality; it is a cornerstone of democratic governance. In a democracy, the military is subordinate to civilian authority, and its internal justice system cannot override the constitution. Trying civilians or even military personnel for treason before a court-martial would effectively place the military above the law—a dangerous precedent.
Practical Implications: What Happens Next?
Falana’s call to action is clear: the Attorney-General should use his powers under Section 174 to terminate the court-martial proceedings and transfer the case to the Federal High Court. If the AGF fails to act, the accused officers could challenge the jurisdiction of the court-martial in court, potentially leading to a stay of proceedings or even a dismissal of the charges.
For the average Nigerian, this case is about more than just legal procedure. It is about whether the rule of law applies equally to everyone—including the military. It is about whether the constitution is the supreme law of the land, or just a document that can be ignored when convenient.
As Falana’s argument makes clear, the stakes could not be higher. If the government proceeds with the court-martial, it risks undermining the very constitutional order it claims to protect.
Conclusion: A Test for Nigeria’s Democracy
Femal Falana’s intervention is not just a legal opinion; it is a reminder that democracy rests on the rule of law, not the whims of power. The trial of 36 suspected coup plotters before a General Court Martial raises fundamental questions about jurisdiction, equality, and the separation of powers.
Whether the Attorney-General heeds Falana’s call remains to be seen. But one thing is certain: the eyes of the legal community—and the nation—are watching.
