Since last week, some members of the Nigerian military have been going back and forth with the governor of Lagos state, Governor Babjide Sanwolu. It started when Governor Sanwolu ordered his aides to arrest and detain a fellow for driving against the traffic. The person to be arrested identified himself as a soldier but the governor still went ahead to order his arrest and embarrassed him. Some soldiers have protested and said that the governor, being a “bloody civilian” does not have the power to arrest a soldier.
The law has been put to the test and that law is whether a civilian governor has the statutory right to order for the arrest and prosecution of a military personnel.
The illegal conduct of the military personnel by driving “one way” is not an issue here, nobody is contesting the fact that driving against the traffic is a prosecutable criminal offence; what is the issue here is who has the capacity to punish the offender, him having identified himself as a military personnel; does a civilian governor or any other person whatsoever other than the Nigerian Armed Forces have the power to punish an erring military officer?
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There is this phrase that the military officers boast with which is; once a person identifies himself as a soldier, (even if such a person is not at the moment adorned in a military attire or in the possession of what could be used to identify him as a soldier) he therefore cannot be placed under civilian laws; he is to be subjected to military or martial laws only. This saying to some extent is not far from the truth as this is the argument the doctrine of compact puts forward.
The doctrine of compact provides a due process to be followed when a military personnel is found wanting, to the effect, military personnel can not be placed in civilian detention as has been ordered by the governor. If a soldier is found wanting the procedure to follow is that a report is to be made to the cantonment commander of that officer, the cantonment commander based on the gravity of the offence will then order the trial of that officer according to martial laws in the martial court and then report back the punishment meted out to the governor, this to some extent is the provision of the Armed Forces Act, 2004.
But there are exceptions to this rule. In Sections 104-114 of the Armed Forces Act, 2004, it has been provided that some offences committed by military personnel give both the civilian court and court-martial jurisdiction over such offences and a military officer could be tried in a civilian court in such a case. Civil authorities are only ousted if the serviceman has committed a military offence, but in this case, a traffic offence is not a military offence and the purported soldier cannot be said to have committed the offence in the course of carrying out his statutory provided military duties.
In the case of MOHAMMED vs. EXECUTIVE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR (2022)LPELR-58538(CA), the court of appeal in 2021 while trashing the argument that a military officer is above investigation by anybody or any law enforcement outfit other than the Nigerian military held that the Economic and Financial Crimes Commission has the jurisdiction to investigate a military officer and that the court also have the jurisdiction to entertain some civilian and even criminal suit against a serving or retired military officer.
So the argument that Governor Sanwolu, a civilian governor, does not have the power to order the arrest and detention of an erring military officer is false and misleading. Despite the provisions of the compact principle and the provisions of the AFA 2004, placing military officers above civilian laws, there are clear-cut exceptions to them.