When senior military officers were reportedly arrested last October over an alleged plot to unseat President Bola Tinubu, many Nigerians felt a chilling sense of déjà vu. For a country shaped by decades of military rule, the word “coup” still evokes memories of midnight broadcasts, seized radio stations, and soldiers taking over government houses.
The military has since confirmed that the suspects—ranging from Captains to Brigadier Generals, alongside some civilian collaborators—will face trial before a military tribunal. The announcement has ignited a sharp constitutional debate: Should alleged coup plotters be tried in the disciplined, closed setting of a court martial, or in the open Federal High Court?
Two leading positions dominate the discourse. One is forcefully advanced by activist-lawyer Femi Falana (SAN); the other is supported by legal commentators who argue that the Armed Forces Act (AFA) permits military trials in defined circumstances.
Falana’s position
Falana strongly opposes trial by court martial. He insists that plotting to overthrow an elected president is not merely a breach of military discipline—it is a grave crime against the state that must be prosecuted exclusively in the Federal High Court under Section 41 of the Criminal Code Act, which prescribes life imprisonment for any overt act intended to depose the President during his term.
In his view, the 1999 Constitution (as amended) is clear: treason and treasonable felony fall squarely within the exclusive jurisdiction of the Federal High Court under Section 251(2). He argues that the military cannot substitute a court martial for a constitutional court in a democracy.
Falana submitted that the case file should immediately be forwarded to the Attorney-General of the Federation for the filing of treasonable felony charges at the Federal High Court. He warned:
“The military authorities who have threatened to try the alleged coup plotters in a military court should be advised to appreciate that the plot to sack a civilian regime is not a military affair.
In any case, the decree for the trial of coup plotters being relied on by the military officers has been repealed while treasonable felony is not one of the offences listed in the Armed Forces Act.”
He further noted that civilians are allegedly involved in the plot. Since civilians cannot be tried by court martial under service law, he argued, the entire matter must go to a civilian court. He cited the African Commission on Human and Peoples’ Rights decision in Media Rights Agenda v Nigeria (2000), which held that military tribunals must never have jurisdiction over civilians.
Falana also drew historical lessons: during military rule, decrees such as the Treason and Other Offences (Special Military Tribunal) Decree No. 1 of 1986 and Decree No. 29 of 1993 allowed military tribunals to try coup plotters, including civilians, often in secret. Those decrees were repealed before Nigeria’s return to civil rule in 1999.
The counter-argument
Those who support court martial jurisdiction point to the precise wording of Section 251 of the Constitution. While Section 251(1) uses the phrase “to the exclusion of any other court” for certain civil matters, Section 251(2) on treason does not contain those exclusionary words.
Legal analysts argue this difference was intentional. If the framers intended treason cases to fall exclusively within the Federal High Court, they would have used the same exclusionary language found in subsection (1).
They also cite the Supreme Court’s decision in BPS Construction & Engineering Co. Ltd v FCDA (2017), where the apex court held that the word “shall” can be mandatory or directory depending on context.
This interpretation suggests that Section 251(2) confers jurisdiction on the Federal High Court but does not necessarily bar other competent courts—such as a court martial—from trying service personnel for treason-related offences.
The legal framework of courts martial
A court martial in Nigeria is a special military tribunal established under the Armed Forces Act (Cap A20, Laws of the Federation of Nigeria) to try personnel for breaches of military discipline, service law, and certain criminal offences.
Its constitutional foundation lies in Section 218(4)(b) of the 1999 Constitution, which empowers the National Assembly to legislate for the regulation and disciplinary control of the armed forces.
The Armed Forces Act outlines offences, procedures, powers, and appeal rights. Courts martial handle military-specific crimes such as mutiny, sabotage, desertion, insubordination, and—under an omnibus clause in Section 114—civil offences punishable under Nigerian law.
Section 114(2) defines “civil offence” broadly as any act or omission punishable under any law in Nigeria. Section 114(3)(a) and (b) specifically prescribe punishment for treason and other grave offences when committed by persons subject to service law.
The Act establishes two main types of courts martial:
– General Court Martial (GCM)— the highest form, convened by senior military authorities, with a president, judge advocate, and several members; it tries serious offences and can impose the death penalty in certain cases.
– Special Court Martial (SCM)— handles less grave matters with more limited sentencing powers.
For minor breaches, commanding officers may conduct summary trials without convening a full court martial, imposing administrative sanctions such as reprimands, fines, or reduction in rank.
Accused persons before courts martial are entitled to legal representation (military or civilian counsel), the right to call and cross-examine witnesses, and other procedural safeguards similar to civilian criminal trials.
Decisions are subject to civilian appellate review—primarily by the Court of Appeal and, on constitutional or legal questions, by the Supreme Court—thus integrating military justice into Nigeria’s broader judicial system.
The Supreme Court has affirmed the judicial status of courts martial in cases such as Olowu v Nigerian Navy (2011), describing them as distinct from conventional courts but operating criminal procedures akin to jury trials.
A case for civilian courts
Senior Advocate Wahab Shittu aligns with Falana, arguing that the nature of the offence—not the status of the accused—should determine jurisdiction. Treason against a democratically elected government, he says, transcends military discipline and assaults the constitutional order itself.
He warns that allowing courts martial to try such offences risks subordinating the Constitution to service law, violating Section 1(3), which declares the Constitution supreme and voids any inconsistent law.
Shittu also highlights Section 114(4) of the Armed Forces Act, which excludes certain grave civil offences—including treason committed in Nigeria—from being treated as ordinary service offences. This, he argues, reinforces the special constitutional status of treason.
Beyond statutory interpretation, he raises democratic accountability concerns: offences threatening the existence of the state should be tried in open civilian courts to reinforce public confidence and civilian supremacy over the military. Secretive or restricted military proceedings, he warns, could revive painful memories of Nigeria’s military era.
Senior Advocate Toyin Taiwo-Ojo agrees, asserting that attempted coup is a crime under the Criminal Code known as treason, and the status of the accused as military officers does not automatically confer court-martial jurisdiction.
“The nature of the offence indeed can override the status of the accused as military tribunals do not exercise constitutional judicial power and are not recognised by the law as having the constitutional power to prosecute offenders of treasonable felony.
Only the superior court of records such as the Federal High Court, State High Courts, and the High Court of the FCT are constitutionally empowered High Courts for trying serious criminal offences such as treason and attempted coups.
Treasonable felony is an offence against the state and therefore has gone beyond the mere disobedience of military laws.
Mr Falana is right to insist that persons so accused, even if they are military officers, should be tried in civilian courts, especially in a civilian government where the constitution reigns supreme.
There are precedents in the Nigerian courts where it was held by the courts that trying such cases in any other court was unconstitutional. See the case Mandara v. Attorney-General of the Federation (1984).”
Friday Mameh argued that a court martial lacks jurisdiction to try the arrested officers, insisting it is purely a matter for the Federal High Court because the alleged crime was committed against a democratically elected government.
Why court martial is valid
Defence Minister General Christopher Musa (rtd) defended the use of a General Court Martial, reminding Nigerians that the alleged coup plot was directed against the Commander-in-Chief of the Armed Forces—the highest military rank in the country.
“They’re military men. They wanted to conduct a military operation against the Commander-in-Chief (a military rank), so they should go to a military court. It’s that simple. I don’t know what the lawyers are talking about.
Even those who took arms in Afghanistan, the U.S. instituted a court-martial for them. They used military law, and those were not even their citizens.
Anytime you take up arms or commit an offence that is military-bound, you should face military law. It’s pure and simple. No sentiments about it.”
Constitutional lawyer Chief Felix Fagbohungbe (SAN) supported military jurisdiction, citing national security considerations and the constitutionality of specialised courts for security-related matters.
“I cannot say they should be tried in a conventional court. Falana can express his view, but what is often left unsaid is what is most important.
They are court-martialed because of the national security involvement. The Constitution gives them the jurisdiction to deal with these matters in a military manner. It is a matter of the Constitution’s definition.
There is no conflict between the constitution and military law. The constitution creates all the courts and gives the National Assembly the power to make laws for specific purposes.
The source of law is the Constitution and that of Parliament. I am certain that the court-martial is exclusively for the military due to security. I do not agree that they must be arraigned in a conventional court.
The court made it clear that once a soldier is arrested, the commanding officer must be notified and the accused must be given the opportunity to elect.
These matters are not new, the law reports are replete with cases where courts martial were properly conducted, appealed against, and in some instances overturned.”
Rear Admiral Livingstone Izu (rtd), former Admiral Superintendent, Naval Ordnance Depot, affirmed that serving military officers are bound by service law.
“This is not a complicated matter. They are service personnel and subject to military law first. That is why in some cases, you see the military after trying its personnel will still hand them over to civilian authorities for prosecution.
The Court Martial allows the suspects to have legal representation of their choice and they can appeal its decision to the Court of Appeal.”
Senior Advocate Norrison Quakers agreed that the suspects remain primarily subject to military justice. While soldiers are governed by both civil and service law, he stressed that procedural safeguards under the Armed Forces Act must first be followed before any civilian prosecution.
Quakers explained that once a soldier is arrested, the matter must be reported to the commanding officer, who must inform the accused of the allegation and allow them to elect whether to be tried by court martial or in a civilian court. This right of election is mandatory; failure to comply renders any prosecution a nullity.
He cited Section 114 of the Armed Forces Act, particularly subsections (3) and (4), which expressly contemplate court-martial jurisdiction over treason when committed by persons subject to service law, subject to the right of election.
Quakers dismissed claims of ambiguity, insisting that alleged coup plotting by serving officers remains primarily a military matter under established law and precedent.
Senior Advocate Michael Igbokwe echoed this view, stating that courts martial are the appropriate forum for trying serving military personnel for service-related offences.
“Courts-martial have always been used for trying and disciplining serving military men and women. That is what regulates them. That has always been the practice, and I am not sure it has changed.
It was settled law that decisions of courts martial are subject to judicial review. It has since been decided that even after a court-martial, there is a right of appeal to regular courts which can review the decision. But the trial itself is always by court-martial or military tribunal, settled within the military hierarchy, because these are military offences concerning military personnel.
You cannot try them in a regular court. What exactly would you be trying them for, especially when they are military men?”
Abiodun Kolawole added that the Court Martial is the mandatory first step for military personnel.
“Because of the current democratic government, once they say the matter should go by way of the Armed Forces Act, you cannot try a person in a regular court while he is still a serving personnel.
They cannot prosecute him like an ordinary citizen. That is why there is a special tribunal for them.”
The debate remains unresolved, pitting constitutional supremacy and civilian judicial oversight against military discipline, national security imperatives, and established service law. The outcome of this legal and political controversy will likely shape how Nigeria balances democratic accountability with military internal governance in the years ahead.
