Untangling the Legal Pathways in the Coup Plot Against the State

The question of how Nigeria should prosecute accused coup plotters has returned to the forefront of public discourse during a time of increased political vigilance and rekindled concerns about national stability.

It’s not only guilt or innocence that’s at issue. It concerns jurisdiction, a constitutional issue that lies at the nexus of the rule of law, military discipline, and democratic administration.

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

As is always the case with Nigeria’s constitutional design, the solution is based on what can be called a dual-track constitution.

Nigeria’s 1999 Constitution establishes two distinct legal systems, each with its own goals and parameters. Sections 6 and 36 serve as the foundation for the civilian judiciary, which is responsible for upholding fundamental rights and adjudicating crimes against the state. The purpose of the military justice system, which is protected by Sections 217, 218, and 315, is to impose discipline on members of the armed forces.

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

There is no uncertainty in the Constitution for civilians. The Federal High Court has exclusive jurisdiction over treason and treasonable felonies, as stated in Section 251(2). For this reason, a civilian court tried and found businessman Muhammadu Mandara guilty of organizing troops to overthrow President Shehu Shagari during the Second Republic.

No matter how serious the accusation, Mandara’s case serves as a reminder to law scholars that civilians cannot be tried by military tribunals.

For active military troops, the circumstances are very different. The Armed Forces Act, which is protected by Section 315 of the Constitution, gives the military the power to discipline its members. Court-martial jurisdiction is triggered by the accused’s status rather than the nature of the offense.

Nigerian appellate courts have regularly upheld this principle. The Court of Appeal ruled in Brigadier-General Anyankpele v. Nigerian Army that court-martial procedures are constitutionally legitimate and come under the judicial authority acknowledged by Section 6.

For soldiers, a coup attempt constitutes not just treason under civilian law, but also conduct that is detrimental to military discipline, mutiny, and insubordination—all of which are crimes that fall under the Armed Forces Act.

Because of this dual nature, soldiers who are suspected of attempting coups have traditionally been tried by court-martial, even while civilians who are implicated in the same plan are tried by the Federal High Court.

Nigerian courts have historically managed to strike a careful balance between military discipline and civilian supremacy. Tribunals were the norm during military administration. The courts have adopted a more active stance under democracy, upholding the constitutional bounds of military justice while demanding due process.

The judiciary has ruled against attempts to try civilians in military courts, supported court-martial proceedings for active military personnel, demanded rigorous respect to fair-hearing standards, and stepped in when military tribunals overreached their legislative authority in politically contentious cases.

This delicate balancing act mirrors a larger constitutional principle: the military must never eclipse civilian power while maintaining discipline in the Armed Forces.

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

Since treason is a crime against the democratic order, rights attorney Femi Falana (SAN) has urged that all accused, including soldiers, should face trial in civilian courts.

His stance is based on constitutional supremacy and is based on principles. 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 specifically guarantees military discipline.

The Mandara precedent, which is frequently brought up in public discussions, exclusively pertains to citizens. The issue of how to handle soldiers who are accused of masterminding a coup remains unresolved.

In the end, Nigeria’s constitutional system exhibits a practical equilibrium. People who are accused of conspiring against the state are put on trial in public, with the public watching. In the military system that oversees their service, soldiers who are charged with the same offense are tried together.

It is a two-pronged strategy that is flawed, disputed, and intentional.

Even during times of political unrest, the court serves as the silent referee as Nigeria fortifies its democratic institutions, guaranteeing that the rule of law is upheld and that neither system goes too far.

Ultimately, the map is provided by the Constitution. The compass comes from the courts. The country keeps a close eye on this, knowing that the way we prosecute accused coup plotters reveals just as much about our democracy as the accusations themselves.