CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
This study deals with how the soldier is subjected to tripartite laws namely: military law, civil law and international law. The soldier upon acquisition of military status, did not only subject himself to a tripartite legal status, but also added onto himself additional legal responsibilities distinct from the civilian. The English Court in confirmation of the above fact, said a soldier does agree and consent that he shall be subject to the military discipline and cannot appeal to the civil courts to rescue him from his own compact.1 The English court decision is no different with the legal status of a soldier in Nigeria except that during the military rule, application of civil laws in the case of the soldier was restricted. The advent of the military into political arena in Nigeria, application of civil laws on the soldier was restricted. Various military decrees promulgated during the first and second phases of military rules in Nigeria prevented the soldier from appealing the decisions of courts martial to the court of Appeal.2 The decrees provided that all cases of appeal from courts martial pending before the court of Appeal should abate.3 The respective service councils of the armed forces shall hear and determine appeal from courts martial as the final body.4 This was the position of the soldier‟s legal status under the military administration in Nigeria.
The transition of Nigeria from military rule to a democratically elected government on 29th May, 1999, has not only generated far reaching implications on the political, social and economical sectors but has equally implemented the hitherto tripartite legal status of the soldier.
One major implication of the restoration of the soldier‟s tripartite legal status is that, things have to be done in a more generally acceptable way that conforms to the rule of law and international standards.5 Another implication is that both civil and military thoughts, processes and practices have to conform to the democratic dispensation as against arbitrariness characteristics of military rules.6 As a result, soldiers have constantly challenged the decision of Courts-Martial at the Court of Appeal and even up to the Supreme Court to enforce their rights. In addition, where a soldier feels himself being wronged by the military authority or a fellow service personnel, he has the right to seek redress at any civil court with jurisdiction to hear and determine the matter.7 However, before embarking on such rights he must first exhaust internal administrative remedies. The effect of enforcing this right of redress in civil court, has immensely turn around military justice system to conform with democratic rule.
The soldier is a citizen of Nigeria hence the constitution is binding on him.8 Being a soldier, he does not cease to be a citizen of Nigeria. He has all the rights and duties as the ordinary civilian enshrined in the CFRN 1999 in addition to his military status. He has the right to enjoy all civil laws either in his personal capacity or as a body corporate. He can engage in a contract, commercial trade, purchase of immoveable properties and so forth like the civilian. If he commits an offence, he can be tried by the civil courts and punished under our Criminal Code9, Penal Code10, Money Laundering Act11 and all other penal laws. Also if he commits a civil wrong (tort), he can be sued in the civil court for his tortuous act. It is for this reason we
said that a citizen who joins the military service, is neither immune from the jurisdiction of civil laws nor civil courts.12
In addition, the soldier owes the state civic duties like the civilian. These duties such as respect for the constitution and its ideals, respect for dignity of other citizens and the right and legitimate interest of others, rendering assistance and declaration of asset and so forth.13 Where he fails to uphold this civil duties, he will be held liable for his conduct
The soldier also enjoys fundamental human rights like the civilians as enshrined in the CFRN 1999.15 The only difference is that his rights can highly be restricted or derogated due to exigencies of service distinct from the civilian. These exigencies may arise as a result of defence, public order, morality or health.16 However, it should be noted that the restriction of the soldier‟s fundamental human rights as a result of exigencies of service is not in anyway and alienation of these rights.
