Right of ReplyThe column for Readers who feel strongly about issues expressed by the Advocate, and have a view point.

Why Coup Suspects Cannot be Tried in a Military Tribunal: Response to Onikepo Braithwaite’s Rejoinder: ‘Military Coup and Court Martial: Is Falana Right?’

This article by learned Senior Advocate, Femi Falana, is a reply to Onikepo Braithwaite’s article of 10/2/2026, ‘Military Coup and Court Martial: Is Falana Right?’. Mr Falana stands his ground that both military and civilian alleged coup plotters must be tried at the Federal High Court, by virtue of Section 251(2) of the 1999 Constitution for several reasons, including the fact that the prosecution cannot be bifurcated and the alleged coup plotters must be tried together; civilians cannot be tried by a Military tribunal and that even under the Military, such trials weren’t done by Court Martial but by Special Military Tribunals set up under special decrees

Introduction 

In her rejoinder to my article on the appropriate court for the trial of the alleged coup plotters, Ikepo gave the impression that the indicted military officers could be tried under the Armed Forces Act by means of the Court Martial, whilst the indicted civilians ought to be tried at the Federal High Court. With respect, the prosecution cannot be bifurcated. Having been accused of committing the same offence of treasonable felony, the military and civilian suspects have to be tried at the Federal High Court pursuant to Section 251(2) of the Constitution. 

History and Examples 

Before the trial of Alhaji Mandara for treasonable felony at the Federal High Court in the Second Republic,  two cases of treasonable felony occurred in the First Republic. In fact, the first treasonable felony case in the history of Nigeria involving Chief Joseph Tarka and four others, was tried at a Jos High Court between April and June 1961.

The second treasonable felony case involves Chief Obafemi Awolowo and 30 of his political lieutenants, who were tried at the Lagos High Court that convicted and jailed them. In 1966, Isaac Boro and his comrades were charged with treason for declaring the “Niger Delta Republic” to fight against the marginalisation of the Ijaw people, leading to a 12-day revolt. Following the  suppression of the revolt, Boro and others were tried in the Port Harcourt High Court which found them guilty and sentenced them to death. Like Chief Awolowo, Boro was granted pardon by the military head of state, General Yakubu Gowon. 

However, under the defunct military junta, the African Commission on Human and Peoples Rights held that military tribunals were not competent to try civilians. In Civil Liberties Organisation v Nigeria (2000) AHRLR, the Federal Military Government of Nigeria announced that it had discovered a plot to overthrow it by force in 1995.  A Special Military Tribunal was established under the Treason and Treasonable Offences (Special Military Tribunal) Decree to try the several persons including civilians, serving and retired military personnel arrested in connection with the alleged plot. The Military Tribunal was headed by Major General Aziza, and composed of five serving military officers. The trials were conducted in secret, and the suspects were not given the opportunity to state their defence, or to have access to Lawyers or their families. The Government appointed military lawyers to defend the suspects. Thirteen civilians tried by the tribunal were convicted for being accessories to treason, and sentenced to life imprisonment. 

The African Commission held that its previous decisions had found that the special tribunals violated the African Charter, because their Judges were specially appointed for each case by the executive branch, and would include on the panel at least one, and often a majority, of military or law enforcement officers, in addition to a sitting or retired Judge. The Commission here reiterated its previous decision, and declared  that the trial of these persons before a special tribunal violates Articles 7(1)(d) and 26. It was also found that the system of executive confirmation, as opposed to appeal, provided for in the institution of special tribunals, violates Article 7(1)(a). The Commission directed the Government to permit the accused persons a civil re-trial with full access to Lawyers of their choice, and to improve their conditions of detention.

Similarly, the Community Court of Justice (ECOWAS Court) has expressly stated that the use of military tribunals by States to prosecute civilians for non-military offences is illegal. In the case of Gabriel Inyang & Anor v Federal Republic of Nigeria, the Applicants were originally charged with armed robbery and had been tried and convicted in 1995 by a Special Military Tribunal established pursuant to Section 8 of Nigeria’s Robbery and Firearms (Special Provisions) Act, 1990. The Applicants lodged claims arguing that their trial by the Military Tribunal constituted a violation of the right to fair trial under Article 7 of the African Charter on Human and Peoples’ Rights (ACPHR). Specifically, the Applicants argued that they were unable to appeal the Military Tribunal’s decision in violation of Article 7(1)(a) ACHPR, which guarantees the right of an appeal to competent national organs. The Applicants also argued that, by virtue of its composition, the Military Tribunal could not be classified as impartial as is required by Article 7(1) (d) of ACPHR. The court held inter alia that the composition of the Tribunal violates Article 7(1)(d) of ACPHR, and that the trial of the Applicants by Military Tribunal violates Article 7(1)(a) and (d) of ACHPR.

Conclusion 

From the foregoing, military officers and civilians who were accused of treason or treasonable felony in the First and Second Republics were tried in the High Courts in accordance with the provisions of the 1963 and 1979 Constitutions. Even during the almost three decades of military rule in Nigeria, coup plotters were never tried by courts martial. They were all tried by special military tribunals, set up under special decrees. Since coup plotters were never tried by any court martial under the defunct military junta, there can be no justification for the trial of the alleged coup plotters in a military court.

Femi Falana, SAN