Alleged Coup Plot: Falana Blames FG, Says Court Martial Not Applicable

The Federal Government’s plan to try military officers accused of plotting a coup against President Bola Tinubu before a court martial has drawn criticism from human rights attorney and Senior Advocate of Nigeria Femi Falana, who maintains that the offense is criminal in nature and needs to be prosecuted under the Criminal Code Act.

Falana reportedly made this known in a statement issued from Lagos in response to the Defense Headquarters’ declaration last week that certain military officials and civilian accomplices had planned to topple the Tinubu government in October 2025.

The attorney particularly cited Section 41 of the Criminal Code Act, which stipulates that anyone attempting to overthrow the government or remove the President by force faces life in jail.

The contentious story by Sahara Reporters that 16 officers, ranging from captain to brigadier general, were arrested in October 2025 for arranging covert meetings to overthrow the government was finally addressed by the Defense Headquarters this week after months of silence.

The claim was denounced as sensational by Brig. Gen. Tukur Gusau, the Director of Defense Information at the time, who insisted that the affair was an internal disciplinary problem. The Defence Intelligence Agency did, however, subsequently affirm that a thorough inquiry was conducted and that the results will be made public.

Maj. Gen. Samaila Uba, the newly appointed Director of Defense Information, gave an update, stating that the investigation had been completed in accordance with military protocols and that the suspects would face a military tribunal.

The accused will face court-martial proceedings in accordance with military laws, according to Minister of Defense Gen. Christopher Musa, who also addressed the development.

“Even though I am involved in the ongoing campaign against unconstitutional change of governments in Africa, I am compelled to point out that the alleged coup plotters cannot be tried by a court martial or any other military tribunal under the current democratic dispensation,” Falana wrote in response. It is a serious offense that needs to be tried under the Criminal Code Act since the military commanders involved in the coup attempt intended to remove an elected president from office. The alleged coup plotters can only be tried under section 41 of the Criminal Code Act, which states that anyone who plans to overthrow the government by using criminal force or to overthrow the president while he is in office and makes that intention known through an overt act is guilty of a felony and faces life in prison.

The case of Umoru Mandara v. Attorney-General of the Federation (1984) 4 S.C. 8 should be studied by those who are putting increasing pressure on the Federal Government to have the accused coup plotters tried by a court-martial. In that instance, the appellant was charged with four counts of treason, inciting to mutiny, and seeking to cause disaffection at the Federal High Court in Lagos. Following the protracted trial, the defendant was found guilty and given a 15-year prison sentence. However, because the Federal High Court lacked the authority to try the appellant, the Supreme Court overturned his conviction. The Federal High Court is authorized by the Constitution to hear cases involving treason and related offenses.

But after President Shehu Shagari was overthrown on December 31, 1983, the Constitution was suspended and changed, and the head of state and governors, respectively, issued decrees and edicts that governed the nation. In order to deal with perceived political opponents, several of the annoying ordinances were hastily passed. For example, the Treason and Other Offences (Special Military Tribunal) Decree 1 of 1986 was issued after General Ibrahim Babangida, the military president, learned that General Mamman Vatsa and the other military officers could only receive a life sentence under section 41 of the Criminal Code Act.

The death punishment for treason and treasonable felonies was established by the Treason Decree. The accused coup plotters were tried under the Treason Decree, which was issued on January 6, 1986, despite the fact that they had been apprehended in December 1985. As a result, they were found guilty by a military court and put to death with premeditation. The assertion made by General Babangida that he killed his close buddy Vatsa because the law had restricted his hands is wholly false. On April 22, 1990, Major Gideon Orkar and his associates tried to kill General Babangida and split apart Nigeria, although they were aware of the legal repercussions of their actions. Nigerians were therefore not shocked when the coup plotters were prosecuted, found guilty, given the death penalty, and put to death in accordance with the Treason Decree.

In May 1992, the second batch of suspected coup plotters was apprehended. Section 41 of the Criminal Code Act was used to accuse the five individuals with treason and conspiracy. They were arraigned before a Chief Magistrate Court in Gwagwalada, the Federal Capital Territory, because they were civilians. They were accused of launching a “Babangida Must Go” campaign across Nigeria. Among the five defendants were myself and the late Chief Gani Fawehinmi. We appeared on behalf of ourselves and our allies since we were detained incommunicado.

Fawehinmi said, “It is ironic that Babangida and his comrade-in-arms, who should have been put on trial for toppling the Shehu Shagari government in December 1981, have turned to charge us with treasonable felony for campaigning against the criminal manipulation of his political transition program,” as he prayed for our bail. Personally, I argued that the Criminal Act’s section 41 allows for the creation of an intention to remove the president from office while he is still in office. I came to the conclusion that the law was intended to defend an elected President with a limited term of eight years rather than a military dictator because the General had no set term of office.

“The prosecutor dropped our trial after verifying that we intended to utilize the case to try the serial coup plotters in power. As a result, we were released and the charge was dropped for lack of rigorous prosecution. Babangida then issued the Treason and Treasonable Offenses Decree No. 29 of 1993, giving the former military junta the authority to establish military tribunals for the trial of coup conspirators. Under the Treason and Treasonable Offenses Decree, both military personnel and civilians—including journalists detained for organizing the 1995 phantom coup d’état—were tried in front of cameras.

“There was no legal basis for the military tribunal’s trial of civilians. The commission found in Media Rights Agenda v. Nigeria (2000) AHRLR 5 that the arraignment, trial, and conviction of civilians by a Special Military Tribunal presided over by active military officers violated both the duty to guarantee the independence of the courts under article 26.63 and the fundamental principles of fair hearing guaranteed by article 7 of the Charter. According to the committee, military courts “should not, in any circumstances whatsoever, have jurisdiction over civilians,” citing its Resolution on the Right to a Fair Trial and Legal Aid in Africa. In a similar vein, crimes that fall outside the purview of normal courts should not be tried by Special Tribunals.

It is documented that General Abdulsalami Abubakar overturned anti-democratic laws, including the Treason and Treasonable Offenses Decree No. 29 of 1993, in order to restore civil rule in the nation, which took effect on May 29, 1999. However, the 1999 Constitution’s authors added section 251(2), which states that “The Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony, and allied offences,” in response to the Lagos High Court’s ruling on November 10, 1993, dismissing the Interim National Government led by Chief Ernest Shonekan.

The alleged involvement of certain people in the scheme is another reason why the accused coup plotters cannot be convicted in a court-martial. The indicted civilians cannot be tried in a military court since they are not covered by service law. The Federal High Court even charged the defendant with treasonous crime in Chief Moshood Abiola vs. The Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155. Similarly, the Federal High Court accused the defendants, including Senator Bola Tinubu (now President), with treason in the case of Ameh Ebute vs. State (1994) 8 NWLR (Pt 360) 66.

In the case of Dr. Kizza Besigye & Another vs. Attorney General and Another (Miscellaneous Cause 31 of 2025) [2025] UGHCCD 29 (24 February 2025), the Supreme Court of Uganda has put an end to the unlawful practice of prosecuting civilians in military courts. In that instance, on November 16, 2024, Dr. Kizza Besigye and Haji Obeid Lutale were violently kidnapped from Nairobi, Kenya, transported to Uganda, and unlawfully imprisoned at the Makindye military barracks. On November 20, 2024, they were charged with security offenses and firearm possession before the General Court Martial. They contested the trial’s legal competence. The Supreme Court ruled on January 31, 2025, that military courts lacked the authority to try civilians. As a result, officials were ordered to stop any existing military prosecutions of civilians and move them to the nation’s civilian legal system.

In light of the aforementioned, the case file of the suspected coup plotters ought to be sent right away to the Federation’s Attorney General’s office. In accordance with section 251(2) of the 1999 Constitution, the Attorney-General must review the case file after receiving it and file a charge of treasonable felony at the Federal High Court. The conspiracy to overthrow a civilian government is not a military matter, and the military authorities who have threatened to trial the accused coup plotters in a military court should be made aware of this. In any event, the military leaders’ reliance on the directive to try coup plotters has been revoked, and treason is not one of the offenses specified in the Armed Forces Act.