{"id":90734,"date":"2026-02-04T13:29:13","date_gmt":"2026-02-04T13:29:13","guid":{"rendered":"https:\/\/dnllegalandstyle.com\/dnl\/?p=90734"},"modified":"2026-02-04T13:29:21","modified_gmt":"2026-02-04T13:29:21","slug":"why-coup-plotters-cannot-be-tried-in-a-military-tribunal","status":"publish","type":"post","link":"https:\/\/dnllegalandstyle.com\/dnl\/why-coup-plotters-cannot-be-tried-in-a-military-tribunal\/","title":{"rendered":"Why Coup Plotters Cannot be Tried in a Military Tribunal"},"content":{"rendered":"\n

By Femi Falana, SAN<\/strong><\/em><\/p>\n\n\n\n

On October 18, 2025, the Sahara Reporters reported that some military officers ranging in rank from Captain to Brigadier General were arrested by the Defence Intelligence Agency for allegedly holding secret meetings to topple the government. The online news medium also linked the cancellation of the October 1 Independence Day parade to the alleged plot.<\/p>\n\n\n\n

At the material time, the former Director of Defence Information, Brigadier General Tukur Gusau, said the publication was intended to create tension and distrust among Nigerians, adding that the matter was strictly a disciplinary issue handled internally. He however said that \u201cThe ongoing investigation involving the sixteen officers is a routine internal process aimed at ensuring discipline and professionalism are maintained within the ranks.\u201d He further disclosed that an investigative panel has been duly constituted, and its findings will be made public.<\/p>\n\n\n\n

Last week, the military authorities eventually confirmed that some military officers and their civilian collaborators had plotted to overthrow the Bola Tinubu administration in October last year. While providing an update on the development, the new Director of Defence Information, Major General Samaila Uba, said a comprehensive investigation had been conducted in line with established military procedures and that the alleged coup plotters would face the music before a military tribunal.<\/p>\n\n\n\n

The Minister of Defence, General Christopher Musa has equally said that the alleged coup plotters \u201care going to face court-martials as usual. The process will be free and fair, and they will be allowed to engage their own legal counsel to defend their action.\u201d It does appear that the federal government believes, rather erroneously, that the coup plot is a military affair.<\/p>\n\n\n\n

Even though I am involved in the ongoing campaign against unconstitutional change of governments in Africa, I am compelled to point out that the alleged coup plotters cannot be tried by a court martial or any other military tribunal under the current democratic dispensation. Since the military officers implicated in the coup plot had wanted to remove an elected President from office, it is a grave crime that has to be tried under the Criminal Code Act. It is pertinent to state that the alleged coup plotters can only be tried under section 41 of the Criminal Code Act which stipulates that anyone who forms an intention to depose the President, during his term of office, or to overawe the government by criminal force, and manifests such intention by an overt act, is guilty of a felony and liable to life imprisonment.<\/p>\n\n\n\n

While praying for our bail, Chief Fawehinmi said that it was an irony that General Babangida and his comrade-in-arms who ought to have stood trial for overthrowing the Shehu Sgagari government in December 1981, have turned to charge us with treasonable felony for campaigning against the criminal manipulation of his political transition programme. On my own part, I submitted that section 41 of the Criminal Act provides for the formation of an intention to remove the president from office during his term of office. I concluded that since General had no fixed term of office, the law to protect a military dictator but an elected President who has a maximum term of 8 years.<\/p>\n\n\n\n

Upon confirming that we had planned to use the case to put the serial coup plotters in power on trial, the prosecutor abandoned our trial. Hence, the charge was dismissed for want of diligent prosecution while we were discharged. Thereafter, General Babangida promulgated the Treason and Treasonable Offences Decree No 29 of 1993 which empowered the former military junta to set up military tribunals to try coup plotters. The military and civilians including journalists who were arrested for planning the phantom coup d\u2019etat of 1995 were tried in camera under the Treason and Treasonable Offences Decree.<\/p>\n\n\n\n

The trial of the civilians by the military tribunal could not be justified in law. In Media Rights Agenda v. Nigeria (2000) AHRLR 5, the Commission determined that the arraignment, trial and conviction of civilians by a Special Military Tribunal presided over by serving military officers, violated the basic principles of fair hearing guaranteed by article 7 of the Charter, as well as the duty to guarantee the independence of the courts under article 26.63. Citing its Resolution on the Right to a Fair Trial and Legal Aid in Africa, the Commission stated that military courts \u201cshould not, in any circumstances whatsoever, have jurisdiction over civilians. Similarly, Special Tribunals should not try offences that fall within the jurisdiction of regular courts.\u201d<\/p>\n\n\n\n

It is on record that the Treason and Treasonable Offences Decree No 29 of 1993 was one of the anti- democratic laws that were repealed by General Abdulsalami Abubakar to pave the way for the restoration of civil rule in the country with effect from May 29, 1999. However, based on the decision of Justice Dolapo Akinsanya of the Lagos High Court which sacked the Interim National Government headed by Chief Ernest Shonekan on November 10,1993, the authors of the 1999 Constitution inserted section 251(2) thereof to the effect that: \u201cThe Federal High Court shall have and exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences.\u201d<\/p>\n\n\n\n

Another reason why the alleged coup plotters cannot be tried in a court-martial is the alleged involvement of some civilians in the plot. Since the indicted civilians are not subject to service law, they cannot be tried in a military court. Even in the case of Chief Moshood Kashimawo Olawale Abiola v The Federal Republic of Nigeria (1995) 1 NWLR (Pt.370) 155, the defendant was charged with treasonable felony at the Federal High Court. Similarly, in the case of Ameh Ebute V State (1994) 8 NWLR (Pt 360) 66, the defendants including Senator Ahmed Bola Tinubu (now President) were charged with treason at the Federal High Court.<\/p>\n\n\n\n

The illegal practice of prosecuting civilians in military courts has just been stopped by the Supreme Court of Uganda in the case of Dr. Kizza Besigye & Another v Attorney General & Another (Miscellaneous Cause 31 of 2025) [2025] UGHCCD 29 (24 February 2025). In that case, Dr. Kizza Besigye and Haji Obeid Lutale were brutally abducted from Nairobi, Kenya on 16 November 2024, transferred to Uganda, and illegally detained at Makindye military barracks. They were arraigned before the General Court Martial (GCM) on 20 November 2024 for charges including security offenses and possession of firearms. They challenged the legal competence of the trial. On January 31, 2025, the Supreme Court held that military courts lack jurisdiction to try civilians and ordered officials to halt all ongoing military trials of civilians and transfer them to the country\u2019s civilian court system<\/p>\n\n\n\n

In view of the foregoing, the case file of the alleged coup plotters should be forwarded to the office of the Attorney-General of the Federation without any further delay. Upon the receipt of the case file, the Attorney-General should study it and file a charge of treasonable felony at the Federal High Court pursuant to section 251(2) of the 1999 Constitution. The military authorities who have threatened to try the alleged coup plotters in a military court should be advised to appreciate that the plot to sack a civilian regime is not a military affair. In any case, the decree for the trial of coup plotters being relied on by the military officers has been repealed while treasonable felony is not one of the offences listed in the Armed Forces Act.<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

By Femi Falana, SAN On October 18, 2025, the Sahara Reporters reported that some military officers ranging in rank from Captain to Brigadier General were arrested by the Defence Intelligence Agency for allegedly holding secret meetings to topple the government. The online news medium also linked the cancellation of the October 1 Independence Day parade […]<\/p>\n","protected":false},"author":9,"featured_media":90735,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_hide_featured_image":false,"_jetpack_featured_image_duplicate_dismissed":0,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[5],"tags":[],"class_list":["post-90734","post","type-post","status-publish","format-standard","has-post-thumbnail","category-news"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t