Coup Plot: Falana Faults FG, Says Suspects Cannot Face Court Martial

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 should be prosecuted under the Criminal Code Act.

In a statement issued from Lagos, Falana reportedly made this known 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 who tries to overthrow the government or oust the President 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 organizing covert meetings to overthrow the government was finally addressed by the Defense Headquarters this week.

Insisting that the situation was an internal disciplinary problem, Brig. Gen. Tukur Gusau, the Director of Defense Information at the time, rejected the claim as sensational. The Defense Intelligence Agency did, however, subsequently affirm that a thorough inquiry was conducted and that the results will be released to the public.

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

Gen. Christopher Musa, the Minister of Defense, also addressed the development, saying that the accused would face court-martial procedures in accordance with military laws.

“Even though I am involved in the ongoing campaign against unconstitutional change of governments in Africa, I am compelled to point out that the accused 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 officers involved in the coup attempt intended to remove an elected president from office. It is important to note that 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 suspected coup plotters tried by a court-martial. The appellant was charged with four counts of treason, inciting to mutiny, and seeking to cause disaffection in that case, which was tried at the Federal High Court in Lagos. The defendant was found guilty at the conclusion of the protracted trial and given a 15-year prison sentence. Due to the Federal High Court’s lack of jurisdiction to try the appellant, the Supreme Court overturned his conviction. The Federal High Court has the authority to try treason and related offenses under the Constitution.

However, the Constitution was suspended and altered following President Shehu Shagari’s ouster on December 31, 1983, and the nation was governed by directives issued by the head of state and governors, respectively. In order to deal with alleged political opponents, some of the annoying decrees were quickly 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 be sentenced to life in prison under section 41 of the Criminal Code Act.

The death sentence was established by the Treason Decree for treason and treasonable felonies. Despite being detained in December 1985, the accused coup plotters were put on trial under the Treason Decree, which was issued on January 6, 1986. As a result, they were premeditatedly executed after being found guilty by a military court. In contrast, General Babangida’s assertion that he killed his close buddy Vatsa because the law had his hands tied is wholly false. Major Gideon Orkar and his associates were aware of the legal repercussions of their April 22, 1990, effort to kill General Babangida and dismember Nigeria, which they failed to do. Nigerians were therefore not shocked when the coup plotters were put on trial, found guilty, given the death penalty, and put to death in accordance with the Treason Decree.

May 1992 saw the arrest of the following batch of suspected coup plotters. According to section 41 of the Criminal Code Act, the five individuals were accused of conspiracy and treason. They were charged before a Chief Magistrate Court in Gwagwalada, the Federal Capital Territory, because they were civilians. They were accused of starting a campaign across Nigeria called “Babangida Must Go.” Among the five defendants were the late Chief Gani Fawehinmi and myself. We made an appearance on behalf of ourselves and our allies because we were detained incommunicado.

“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,” Fawehinmi said while pleading for our bail. The Criminal Act’s section 41, I argued, 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 maximum term of eight years rather than a military dictator, as the General had no set term of office.

“The prosecutor dropped our trial after it was confirmed that we intended to utilize the case to try the serial coup plotters in power. We were released as a result, and the charge was dropped for lack of rigorous prosecution. Babangida then issued the Treason and Treasonable Offenses Decree No. 29 of 1993, which gave the former military junta the authority to establish military tribunals for the trial of coup conspirators. Under the Treason and Treasonable Offenses Decree, the military and civilians—including journalists detained for organizing the 1995 phantom coup d’etat—were prosecuted in camera.

The military tribunal’s trial of civilians was not legally warranted. The commission concluded 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 ensure the independence of the courts under article 26.63 and the fundamental principles of a fair trial guaranteed by article 7 of the Charter. The commission said that 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 and saying as much. In a similar vein, Special Tribunals shouldn’t hear cases involving crimes that belong in regular courts.

It is known 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 authors of the 1999 Constitution 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 purported involvement of certain people in the scheme is another reason why the accused coup plotters cannot be convicted in a court-martial. A military court cannot try the indicted civilians because they are not covered by service law. In Chief Moshood Abiola vs. The Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155, the Federal High Court even charged the defendant with treason. The Federal High Court also indicted defendants, including now-President Senator Bola Tinubu, with treason in the case of Ameh Ebute vs. State (1994) 8 NWLR (Pt 360) 66.

In the case of Dr. Kizza Besigye & Others vs. Attorney General and Others (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 one instance, on November 16, 2024, Dr. Kizza Besigye and Haji Obeid Lutale were violently kidnapped from Nairobi, Kenya, transported to Uganda, and wrongfully imprisoned at the Makindye military barracks. On November 20, 2024, they were hauled before the General Court Martial on allegations that included possession of firearms and security violations. The trial’s legal competence was contested. 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 current 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 should be sent right away to the Federation’s Attorney-General’s office. Following receipt of the case file, the Attorney-General is required under section 251(2) of the 1999 Constitution to review it and file a charge of treasonable felony before the Federal High Court. It is important to remind the military authorities that the plot to overthrow a civilian government is not a military matter, even though they have threatened to trial the accused coup plotters in a military court. Treason is not one of the offenses specified in the Armed Forces Act, and the edict that the military officials were depending on to try coup plotters has been revoked.