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HomeArticleIs Section 148(1) of the Armed Forces Act Cap A20 Laws of...

Is Section 148(1) of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004 (AFA) Constitutional?

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When a Court-Martial finds a person subject to service law guilty of an offence, a Confirming Authority (depending on whether the accused is a Commissioned Officer – the Army, Air or Navy Council and if a Non-Commissioned Officer, the relevant Service Chief. See section 152 (1) of Armed Forces Act Cap A20 L.F.N. 2004) confirms the decision of the Court-Martial.

Section 148(1) of the Armed Forces Act provides as follows –

Where a court-martial finds the accused guilty of a charge, the record of the proceedings of the court-martial shall be transmitted within sixty days from the date of the finding to the confirming authority for confirmation of the finding and sentence of the court-martial on that charge.”

Is section 148(1) of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004 (AFA) constitutional?

Generally, when a trial court (whether civil or criminal) determines a matter, a dissatisfied party may appeal where the right to such appeal is prescribed or given by statute whether with leave or without leave of court. Several rights of appeal are prescribed or given by various statutes (both state and federal) including the Constitution of the Federal Republic of Nigeria(CFRN) 1999 as amended.

A right of appeal is always provided by statute. It is neither inherent nor a common law right; it is always a statutory right. See Mekwunye v Director of Audit: [1967] 5 N.S.C.C. 223. See also section 240 of CFRN 1999 and section 183 AFA.

What does an appellate court do?

An appellate court reviews the evidence and outcome of cases in a lower court when one party is not satisfied with the decision.

In Adegoke Motors Ltd. v Adesanya (1989) 5 S.C.N.J. 80, (1989)3 N.W.L.R. (Pt. 109) 250, the Supreme Court per Oputa J.S.C. of blessed memory delivering the lead judgment stated that an appeal is a judicial examination by a higher Court of the decision of an inferior court.

An appellate court does any of the following –

  • affirm or agree with the decision of the trial court
  • set aside  the decision of the trial court
  • vary the decision of the trial court
  • refer the case back to the trial court for a  re-trial or other action

See section 185 (1) & (3) of AFA and sections 15 & 19 of Court of Appeal Act Cap C36 L.F.N. 2004.

What does a Confirming authority do?

Section 150 of the AFA provides as follows –

(1)      A confirming authority may direct that a court-martial shall revise its finding of guilty in any case where it appears to him that—

             (a)        the finding was against the weight of evidence; or

            (b)         some question of law determined at the trial and relevant to the finding was                            wrongly determined.

Section 151 of AFA further provides as follows –

  • Subject to the provisions of section 150 of this Act and to the following provisions of this section, a confirming authority shall deal with the finding or sentence of a court-martial—

(a)    by withholding confirmation, if of the opinion that the finding of the court-martial is unreasonable or cannot be supported, having regard to the evidence or to the fact that it involves a wrong decision on a question of law or that on any other grounds there was a miscarriage of justice; or                      

(b)        by confirming the finding or sentence; or                       

(c)        by referring the finding or sentence or both for confirmation to a higher confirming               authority. 

(2)    Where a confirming authority is of opinion that the facts of the case as considered by the court-martial would have justified a finding of guilty by that court-martial on other grounds, the confirming authority may, instead of withholding confirmation of the finding, substitute a finding of guilty on those other grounds and direct whether the punishment should be remitted in whole or in part or be commuted under the provisions of subsection (4) of this section.

(3)    Where it appears to a confirming authority that a sentence of a court-martial is invalid, the confirming authority may, instead of withholding confirmation of the sentence, substitute therefore a proper sentence of any punishment which might have been awarded by the court, not exceeding or, in the opinion of the confirming authority, more severe than that awarded by the court-martial.

(4)   If the confirming authority confirms the sentence of a court-martial, the confirming authority may—

  • remit in whole or in part a punishment awarded by the court-martial; or            
  • commute a punishment so awarded for such other and lesser punishment or punishments as may be prescribed by this Act.

(5)    A finding or sentence substituted by the confirming authority or a sentence having effect after the confirming authority has remitted or commuted the punishment, shall be treated for all purposes as a finding or sentence of the court-martial duly confirmed. 

(6)    The confirmation of a finding or sentence shall not be deemed to be completed until the finding or sentence has been promulgated, and in the event of a substitution, remission or commutation as aforesaid, the finding or sentence shall be promulgated as if it has effect after the substitution, remission or commutation.

(7)    Where the confirming authority withholds confirmation under this section, notice therefore shall be promulgated, and it shall have effect as from the date of the promulgation.

From the above provisions, it can be seen that a Confirming Authority does about same thing as the Court of Appeal as regards the decision of a Court-Martial.

  • Confirm or affirm the decision of the trial court – section 151(1) (b) of AFA
  • Set aside the decision of the trial court – section 151(7) of AFA [has the semblance of setting aside].
  • Vary the decision of the trial court – section 151 (2), (3) & (4) of AFA

Where is the right of appeal to the decision of a Court-Martial decision derived?

  1. Section 240 of the CFRN 1999 as amended provides as follows –

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a state, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”

  1. Section 183 of the AFA provides as follows –

Subject to the following provisions of this Part, an appeal shall lie from decisions of a court-martial to the Court of Appeal with the leave of the Court of Appeal:

Provided that, an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a court-martial involving a sentence of death.”

Now, how do we describe in law, the status of a Confirming Authority in view of the provisions of section 240 of CFRN and Section 183 of AFA?

On one hand, it appears the Confirming Authority is an extension of a Court-Martial or a part of it. Section 148(3) of the AFA provides that as follows –

A finding of guilty or sentence of a court-martial shall not be treated as a finding or sentence of the court-martial until it is confirmed”

On the other hand, it appears that a Confirming Authority is an appellate court. See sections 150 & 151 of AFA above on the powers of a Confirming Authority.

Section 148 (1) of AFA provides as follows –

(1) Where a court-martial finds the accused guilty of a charge, the record of the proceedings of the court-martial shall be transmitted within sixty days from the date of the finding to the confirming authority for confirmation of the finding and sentence of the court-martial on that charge.

To which court does a trial court transmit records of proceedings? It is an appellate court or another court where it finds it has no jurisdiction to decide a matter. A trial court will not transmit records to itself.

ASSURED LIFT

Although a Court-Martial is a creation of statute duly recognized by the constitution; it appears it is a dog that can only bark but cannot bite in view of the provision of section 148(3) of AFA. By the provisions of sections 143 – 154, a certain set of people duly recognized by the constitution would convene, receive evidence and generally adjudicate on a matter only for their decision to be subject to the decision of a certain set of persons not recognized by the constitution to confirm the decision.

What a Confirming Authority is empowered to do by AFA is essentially the business of the Court of Appeal.

At best, a Confirming Authority can only be treated in law as part of a Court-Martial or an extension of same. See section 148(3) of AFA. Section 150(7) of AFA provides as follows –

Except as provided in subsection (6) of this section, this Act shall apply to the proceedings of the court-martial on any such revision as it applies to its deliberation on the original finding or sentence, and any substituted finding or sentence shall be treated for all purposes as an original finding or sentence of the court-martial.”

See also section 151(5) of AFA.

Therefore, it is correct to state that a Confirming Authority is an extension of a Court-Martial.

Now, if a Confirming Authority is part of the Court-Martial, can a court sit on appeal on its decision? The answer is in the negative. Once a court determines a case, it is functus officio. See Okon V. Ekanem [2002] 15 NWLR Pt. 789 pg. 106 at 136 – 137.

The problem with powers of a Confirming Authority under AFA is that it does not receive or hear evidence: it does not adjudicate on the matter but the final decision of a duly convened Court-Martial that received, heard and evaluated evidence rests with it. And it cannot assume the status of an appellate court as it is not, since the constitution is clear where the appeal lies.

In essence, a Confirming Authority does not receive evidence, hear evidence or observe the demeanors of witnesses. The right of appeal to the decision of a Court-Martial is a constitutional right; the Constitution states so. What a Confirming Authority does is to usurp the powers/roles of the Court of Appeal.

The exercise of the powers given to a Confirming Authority in section 148(3) of AFA impedes the constitutional right of appeal of a dissatisfied person subject to service law as such person needs to pursue the decision of a Confirming Authority or wait for the Confirming Authority to make its decision before such person exercises his constitutional right of appeal.

It would appear that the provisions of sections 148 – 156 of AFA are to ensure a comprehensive military justice is done before the decision of a Court-Martial leaves the military territory.

However, I posit that sections 148 – 151 of the Armed Forces Act are unconstitutional.

A Court-Martial is a special court without doubt but the law that guides its operations is still subject to the supreme law of the land.

It is suggested that the provisions of the AFA as regards a Confirming Authority should be expunged from the law as it is unconstitutional.

If the jurisprudence behind the enactment of AFA is that the adjudication on military offences should strictly remain within the military then it should be clear and should be in sync with the constitution of the country.

Furthermore, if the idea is to have a military court of appeal, it should be clear and same should align with the provisions of the constitution so that if we are dealing with bird, we know we have a bird and not a bat that is neither a bird not a rat and the status of a Confirming Authority can be properly validated.

What sections 148 – 156 are saying indirectly to the members of a duly convened Court-Martial is ‘we don’t trust you guys to conduct a fair trial, we need to examine what you did before the defendant appeals.’ That is what AFA is saying in those relevant sections. Why would you appoint people you do not trust in the first place to adjudicate on a matter?

How can the final decision on a matter rest on a Confirming Authority who themselves are not sitting in an appellate jurisdiction, have not had the opportunity to evaluate evidence first hand and observe demeanours of witnesses whilst the decision of the trial panel hangs in the balance and at best would serve as a recommendation to it?

I respectfully submit that it is not good law. It is either the convener trusts the members of the Court-Martial to do a good job of adjudication or it does not.

Section 151(1) adds insult to the injury created by section 148. It provides as follows –

  • Subject to the provisions of section 150 of this Act and to the following provisions of this section, a confirming authority shall deal with the finding or sentence of a court-martial—

(c)     by referring the finding or sentence or both for confirmation to a higher confirming          authority.

In essence, section 151 (1) of AFA envisages a situation where the Service Chiefs and Service Councils may not be able to confirm the decision of a Court-Martial and as such a Confirming Authority may need to refer confirmation of such decision to a higher authority.

It is hard to come to terms with the reason for the provision.

This section pre-supposes that where for any reason a confirming authority cannot confirm a sentence, it shall refer same to a higher authority. What higher authority? Is it the Defence Council that is already saddled with defending the territorial integrity of the country and battling Boko Haram for several years? Is it the National Security Adviser? Is it the Minister of Defence? Is it the Council of State? Or is it the Commander-in-Chief himself?

Considering the fact that the first persons that can confirm the decision of a Court-Martial are the Service Chiefs and relevant Service Council or Board (see section 152 of AFA); the provision of section 151 (1) (c) AFA is absolutely ridiculous.

The idea of the confirming authority is simply an anomaly; there is no better way to put same and I submit that the provision be expunged from the AFA. The matter is adjudicatory and should be left to the judicial system of the country to resolve.

Section 1(3) of the constitution provides that where any law is inconsistent with the constitution it shall be void to the extent of its inconsistency. Section 148 of AFA is a clog in the way of section 240 of the constitution which is clear and unambiguous; an appeal from the decision of a court martial shall lie to the Court of Appeal.

It is suggested that the right of appeal is directly related to right to fair hearing and if there is a law in the way of the right of appeal of any person contrary to the provision of the constitution it should be jettisoned.

_________________________________

Sources –

Featured image by – SSGT Paul R. Caron, USAF [Public domain], via Wikimedia Commons

Second image by – By SSGT Paul R. Caron, USAF – http://www.defenseimagery.mil ID:970220-F-PQ557-005, Public Domain, https://commons.wikimedia.org/w/index.php?curid=24150734

 

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