The question of how Nigeria should prosecute accused coup plotters has returned to the forefront of public discourse during a time of increased political alertness and renewed concerns about national stability.
There is more to the dispute than guilt or innocence. It concerns jurisdiction, a constitutional issue that lies at the nexus of military discipline, democratic administration, and the rule of law.
The subject at hand is deceptively straightforward: Should people suspected of planning to overthrow the government be tried by the military’s court-martial system or by civilian courts?
As is typically the case with Nigeria’s constitutional design, the solution is based on what could be called a dual-track constitution.
Nigeria’s 1999 Constitution establishes two separate legal systems, each with its own goals and parameters. Sections 6 and 36 serve as the foundation for the civilian judiciary, which upholds fundamental rights and decides cases involving crimes against the state. The purpose of the military justice system, which is protected by Sections 217, 218, and 315, is to uphold discipline in the armed forces.
Sometimes, particularly in politically delicate situations where military and civilians are both accused of conspiring, these two systems clash.
The Constitution offers no room for doubt for civilians. According to Section 251(2), the Federal High Court has exclusive jurisdiction over treason and treasonable felonies. For this reason, a civilian court tried and found businessman Muhammadu Mandara guilty of organizing soldiers to overthrow President Shehu Shagari during the Second Republic.
Legal scholars continue to refer to Mandara’s case as a warning that, regardless of the seriousness of the accusation, civilians cannot be tried in military tribunals.
For active military troops, the situation is very different. Section 315 of the Armed Forces Act, which is protected by the constitution, gives the military the power to discipline its own. The status of the accused, not the substance of the offense, establishes court-martial jurisdiction.
Nigerian appellate courts have consistently upheld this principle. The Court of Appeal ruled in Brigadier-General Anyankpele v. Nigerian Army that court-martial procedures are constitutionally legitimate and fell under the judicial authority granted by Section 6.
A coup attempt is seen by soldiers to be not just treason under civilian law, but also mutiny, insubordination, and behavior detrimental to military discipline, all of which fall under the Armed Forces Act.
Despite citizens implicated in the same conspiracy being tried by the Federal High Court, soldiers suspected of coup plotting have generally been tried by court-martial due to its dual character.
Nigerian courts have historically had to strike a careful balance between military discipline and civilian supremacy. Tribunals dominated the scene during military administration. The courts have adopted a more active stance under democracy, upholding the constitutional limits of military justice while demanding due process.
The judiciary has supported the legitimacy of court-martial trials for serving troops, ruled against attempts to try civilians in military courts in politically heated situations, demanded strict respect to fair-hearing norms, and stepped in when military tribunals overreached their statutory authority.
A larger constitutional principle is reflected in this delicate balancing act: the military must maintain discipline but never take precedence over civilian power.
The discussion has been rekindled by recent claims of coup plotting, allegedly including active military officers.
Since treason is an offense against the democratic order, rights attorney Femi Falana (SAN) has urged that all suspects, including soldiers, should be tried in civilian courts.
His stance is based on constitutional primacy and is based on moral principles. However, it faces a long-standing legal reality: Nigerian courts have always recognized the military’s right to try its own personnel, and the Constitution expressly guarantees military discipline.
Only civilians are covered by the Mandara precedent, which is frequently brought up in public discussions. The issue of how to handle soldiers who are suspected of masterminding a coup remains unresolved.
In the end, Nigeria’s constitutional structure exhibits a practical equilibrium. Public scrutiny is present during the open court trial of civilians who are suspected of planning against the state. The military system that oversees their service is utilized to try soldiers who are accused of the same offense.
It is a two-pronged strategy that is flawed, contentious, and intentional.
The judiciary continues to be the silent referee as Nigeria fortifies its democratic institutions, making sure that the rule of law always wins out and that neither system goes too far, even during times of political unrest.
The map is ultimately provided by the Constitution. The compass is provided by the courts. And the country keeps a tight eye on things, knowing that the way we prosecute suspected coup plotters reveals just as much about our democracy as the accusations themselves.
