Untangling Legal Pathways in the Coup Plot against State

Yemi Kosoko submits that due process should be followed both in conventional and military courts in the trial of the officers and individuals accused of plotting to overthrow  President Bola Tinubu.

In a season of heightened political vigilance and renewed anxieties over national stability, the debate over how Nigeria should prosecute alleged coup plotters has returned to the centre of public discourse.

The controversy is not merely about guilt or innocence. It is about jurisdiction — a constitutional question that sits at the intersection of democratic governance, military discipline, and the rule of law.

At issue is a deceptively simple question: Who should try individuals accused of plotting to overthrow the government — the civilian courts or the military’s court‑martial system? 

The answer, as always in Nigeria’s constitutional architecture, is layered on what could be tagged a Constitution built on dual tracks.

Nigeria’s 1999 Constitution creates two parallel systems of justice, each with its own mandate and boundaries. The civilian judiciary — anchored by Sections 6 and 36 — is the guardian of fundamental rights and the arbiter of offences against the state. The military justice system — preserved under Sections 217, 218, and 315 — is designed to enforce discipline within the Armed Forces.

These two systems occasionally collide, especially in politically sensitive cases where soldiers and civilians are implicated in the same alleged conspiracy.

For civilians, the Constitution leaves no ambiguity. Treason and treasonable felony fall under the exclusive jurisdiction of the Federal High Court, as provided in Section 251(2). This is why, during the Second Republic, businessman Muhammadu Mandara — accused of mobilising soldiers to topple President Shehu Shagari — was tried and convicted by a civilian court.

Mandara’s case remains a touchstone for legal scholars: a reminder that civilians cannot be subjected to military tribunals, no matter the gravity of the allegation.

The situation is markedly different for serving military personnel. The Armed Forces Act — constitutionally preserved by Section 315 — grants the military the authority to discipline its own. Court‑martial jurisdiction is triggered not by the nature of the offence, but by the status of the accused.

This principle has been affirmed repeatedly by Nigerian appellate courts. In Brigadier‑General Anyankpele v. Nigerian Army, the Court of Appeal held that court‑martial proceedings are constitutionally valid and fall within the judicial powers recognised by Section 6.

For soldiers, a coup attempt is not only treason under civilian law; it is also mutiny, insubordination, and conduct prejudicial to military discipline — all offences squarely within the purview of the Armed Forces Act.

This dual character explains why soldiers accused of plotting coups have historically been tried by court‑martial, even when civilians involved in the same plot face the Federal High Court.

Nigeria’s courts have long navigated the delicate balance between civilian supremacy and military discipline. During military rule, tribunals dominated the landscape. Under democracy, the courts have taken a more assertive posture, insisting on due process while respecting the constitutional boundaries of military justice.

In politically charged cases, the judiciary has struck down attempts to try civilians in military courts, upheld the validity of court‑martial trials for serving soldiers, insisted on strict adherence to fair‑hearing standards and intervened when military tribunals exceeded their statutory powers 

This balancing act reflects a broader constitutional philosophy: the Armed Forces must remain disciplined, but the military must never overshadow civilian authority.

Recent allegations of coup plotting — reportedly involving serving military personnel — have reignited the debate.

Rights lawyer, Femi Falana (SAN) has argued that all suspects, including soldiers, should be tried in civilian courts because treason is an offence against the democratic order.

His position is principled and rooted in constitutional supremacy. But it confronts a long‑standing legal reality: the Constitution expressly preserves military discipline, and Nigerian courts have consistently upheld the military’s authority to try its own members.

The Mandara precedent, often cited in public debate, applies only to civilians. It does not resolve the question of how to treat soldiers who allegedly mastermind a coup.

Nigeria’s constitutional framework ultimately reflects a pragmatic balance. Civilians accused of plotting against the state are tried in open court, under the full glare of public scrutiny. Soldiers accused of the same offence are tried within the military system that governs their service.

It is a dual‑track approach — imperfect, contested, but deliberate.

As Nigeria continues to strengthen its democratic institutions, the judiciary remains the quiet referee, ensuring that neither system overreaches and that the rule of law prevails, even in moments of political turbulence.

In the end, the Constitution provides the map. The courts provide the compass. And the nation watches closely, aware that how we try alleged coup plotters says as much about our democracy as the allegations themselves.