Understanding the Legal Framework Surrounding the State Coup Plot

The question of how Nigeria should punish accused coup plotters has once again taken center stage in public conversation during a time of increased political alertness and renewed concerns about national stability.

The issue is not only one of guilt or innocence. It concerns jurisdiction, a constitutional issue at the nexus of military discipline, democratic administration, and the rule of law.

The subject at hand is deceptively straightforward: Should people accused of planning to overthrow the government be tried in civilian courts or by the military’s court-martial system?

As has historically been the case with Nigeria’s constitutional design, the solution is based on what could be called a dual-track constitution.

The 1999 Nigerian Constitution establishes two separate legal systems, each with a distinct purpose and set of limitations. The civilian judiciary, which is supported by Sections 6 and 36, is responsible for upholding fundamental rights and deciding cases involving crimes against the state. Enforcing discipline within the Armed Forces is the goal of the military justice system, which is protected by Sections 217, 218, and 315.

Sometimes, particularly when military and civilians are accused of participating in the same alleged plot, these two systems clash.

The Constitution is clear to civilians. Section 251(2) states that the Federal High Court has exclusive jurisdiction over treason and treasonable felonies. This is the 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 use Mandara’s case as a benchmark because it serves as a reminder that civilians cannot be tried in military courts, regardless of how serious the accusations may be.

Serving military soldiers are in a very different circumstance. The military has the power to discipline its own under the Armed Forces Act, which is protected by Section 315 of the Constitution. The accused’s standing, rather than the content of the offense, is what initiates court-martial jurisdiction.

Nigerian appellate courts have consistently upheld this idea. The Court of Appeal ruled in Brigadier-General Anyankpele v. Nigerian Army that court-martial procedures are constitutionally permissible and fell under the judicial authority granted by Section 6.

In addition to being treason under civilian law, a coup attempt is also considered by soldiers to be mutiny, insubordination, and behavior detrimental to military discipline, all of which are crimes that fall under the Armed Forces Act.

This split personality explains why, historically, soldiers who are suspected of attempting coups have been tried by court-martial, even while citizens who were part in the same plan are tried by the Federal High Court.

For a considerable amount of time, Nigerian courts have managed the fine line between military discipline and civilian supremacy. Tribunals were the norm when the military was in power. The courts have adopted a more active stance under democracy, upholding the constitutional limits of military justice while insisting on due process.

The judiciary has maintained the legitimacy of court-martial trials for serving troops, upheld attempts to try civilians in military courts, demanded strict respect to fair-hearing norms, and stepped in when military tribunals overreached their statutory authority in politically contentious cases.

The broader constitutional notion that the military must maintain discipline but never supersede civilian authority is reflected in this delicate balancing effort.

The argument has been rekindled by recent claims of coup plotting, allegedly including active military officers.

Femi Falana (SAN), a rights attorney, has maintained that since treason is an offense against the democratic order, all suspects—including soldiers—should be punished in civilian tribunals.

His stance is morally sound and based on the supremacy of the constitution. However, it faces a long-standing legal reality: Nigerian courts have always recognized the military’s right to trial its own personnel, and the Constitution expressly maintains military discipline.

The Mandara precedent solely applies to civilians, although being frequently invoked in public discourse. The issue of how to handle soldiers who are accused of plotting a coup remains unresolved.

A practical balance is finally reflected in Nigeria’s constitutional framework. In open court, in full view of the public, those who are accused of plotting against the state are tried. Members of the military system that oversees their service are tried for the same offense.

It is a two-pronged strategy that is controversial, flawed, and purposeful.

The judiciary continues to be the silent referee as Nigeria fortifies its democratic institutions, making sure that the rule of law reigns supreme even during times of political unrest and that neither system goes too far.

The Constitution ultimately offers the road map. The guide is supplied by the courts. The country keeps a close eye on this, knowing that the way we prosecute suspected coup plotters reveals just as much about our democracy as the accusations themselves.