In Nigeria, it is notorious that majority
of the civilians do not know their rights, and for a population where the majority
do not know their rights, legal understanding is consequently a sophisticated
endeavor. Although, this a discussion for another time, the reason why law
seems sophisticated in Nigeria is still very confusing. For a country having
three major languages – Yoruba, Igbo, and Hausa – one would expect that laws
would be written in these languages, or if not, that laws would be written in
the more common and uniting language – the ‘Nigeria Pidgin English’. A forced
understanding of the law written in English
language in a country where the majority of the adults – 56.9% – are
illiterates is ludicrous.
The question beckons, who are the laws written for?. It is like the USA having
their laws written in French, or France having their laws written in Chinese.
The relics of colonization must be modified (to suit the Nigerian people) if we
do not want to totally abrogate them. The legal profession and the Rules of
professional responsibility are also a
constituent factor in the legal illiteracy of the Nigeria populace; for
example, lawyers are restricted in giving legal clarifications to the populace
by Rule 35
of the “Rules of Professional Conducts for Lawyers” (in Nigeria). This is an
anomaly, as it offends the right to freedom of expression (of lawyers) as
promised in the section 39 of the Nigerian 1999 Constitution.
The problems described above have been the
cause of the dearth of cases on the law relating to wearing of military garbs
in Nigeria hitherto. There is virtually no case law
on this issue in Nigeria, and one of the causes is that the people do not understand
the law or their rights?, for if we know our rights and understand the law,
someone, in the past would have brought this issue before a court of law in
Nigeria. It is saddening while writing on a topic as this, that the writer has
to search the nooks and crannies for authorities to support arguments. On
another note, if laws are not deliberately made sophisticated, and if everyone
understand the law, the crippled man almost beaten to death by two military
officers in Onitsha, Anambra State recently
would not have been a victim of the humiliation and pain he suffered, for
what?, just because he is a Nigerian and has worn a military camouflage.
Since the attitude of the Nigerian military
is a continuing one, where they assault anyone wearing military-like attire,
and since the court has not made any
pronouncement on the issue – because no one has had the audacity to take their
case to court, this creates a lacuna in legal discourse. “Legal discourse”
because the majority of the writings on
the issue are being propounded by non-lawyers or those who do not understand
the law. The aim of this article is to dissect the law on the issue of
civilians wearing military camouflage, the legal provisions especially in the
Criminal Code Act (applicable in Nigeria – aside from the Northern part), and
the legality of the military officers who more than often ‘beat the hell out’
of civilians wearing military camouflage in public.
Quickly, the relevant laws are in sections
110
– which describes the acts that constitute
the offense and the punishment of “Unlawfully
wearing the uniform of forces”, and section 251 – which describes the offense of what constitutes “Bringing contempt
on uniform”.
In section 110, the law provides that:
Any
person who – Unlawfully wearing the uniform of forces, etc. L.N. 112 of 1964.
1967 No. 27.
(1) not being a person serving in any
of the armed forces of Nigeria, wears
the uniform or any part of the uniform of such forces, or any of the armed
dress having the appearance or bearing any of the regimental or other
distinctive marks of such uniforms; or
(2) not being a person holding any
office or authority under the Government of Nigeria or of any part thereof,
wears any uniform or distinctive badge or mark or carries any token calculated to convey the impression that such person holds
any office or authority under the government;
is guilty of an offense and is liable to imprisonment for one
month, or to a fine of ten naira, unless
he proves that he had the permission of the President or of the Governor of a
State or wear such uniform or dress, badge or mark or to carry such token:
Provided that this section
shall not apply to the wearing of any uniform or dress in the course of a stage
play or in any bona fide public entertainment.
First, it must be understood that contrary
to popular belief and what has been circulating, this provision does not “entirely” incriminate civilians from
wearing military attire or a camouflage of same. Here is a dissection of the
two subsections, starting from subsection 2.
In the said subsection 2, a proper and close reading would show that
what that subsection incriminates is “impersonation”, especially when one pay
close attention to the phrase “calculated to convey the impression”. In law,
there are lots of ramifications that follows using a phrase as this in a criminal
law provision. One, it shows that the crime requires a criminal mental state,
and also, that the prosecution/State must prove this culpable mental state
before the suspect can be convicted. It,
therefore, follows that civilians wearing military garbs on the street
without the intention or mental state calculated to convey the impression that
they belong to the military cannot be held responsible under section 110
subsection 2. It is very simple. The prosecution has the burden of proving that
a civilian wearing a military garb intend to impersonate, the civilian is not liable
at the point of merely wearing a military garb.
On subsection 1, unlike subsection 2, the offense is clearly strict in nature. A strict offense
is one that doesn’t require the prosecution/State to prove the mental state
which culminated into physically carrying out the culpable mental state. Put in
another way, doing the act alone is enough for someone to be found guilty, for
example, merely possessing arms like gun(s)
is a crime in Nigeria under section 428 of the Criminal Code Act, whether the
person intended to possess the gun is immaterial. Likewise in subsection 1
above, wearing the said uniform or any type having the appearance is enough to
make someone liable. Why it could be argued that this section is the main basis
for the harassment of the Nigerian populace wearing military camouflage, it
must be mentioned that the interpretation of that provision itself is not
flawless. The wordings of section 110 (1) at best is an example of ‘legislative
imprudence’ common in most Nigerian statutes. For what it’s worth, it is
obvious that what section 110 in the ‘spirit of the law’ is trying to
incriminate is also “impersonation” like its subsection 2. This argument is
further bolstered when one looks at the two previous sections of the law –
which are also deliberating on similar offense,
this time for persons in public service and police officers. Section 108 uses
the word “personates” and section 109
uses the words “with intent…” It is only logical that section 110 also
incriminates personation, but it seems the legislature has ‘muddled up’ its
actual intention in section 110 subsection 1.
Although the ongoing
argument is open to lots of criticisms – like the literal provision of the law
must be adhered to – a counter-argument is employing the legislative intent in
interpreting a statutory provision. The title of section 110 shows it was added
in 1967, that period marked the beginning of the Nigerian Civil War, whereas a
legislative manuscript or White Papers of the legislature in making this law
cannot be laid hands on so that one can decipher the legislative intent behind section
110 (1). Still, one can logically reason that the legislative intent was to prevent
impersonation or using the military platform to carry out odd/criminal
activities. It is also logical to say the legislative intent was to delineate
civilians from the military. Whichever logically conclusion one might want to
draw, the most important thing is that section 110 in its entirety is a war relic that must and should have been eliminated since it was not part of our law
before, but was “smuggled” in – for war, and emergency purpose. War has ended,
so is the emergency situation, in fact, the Civil War ended 3 years after, in
early January of 1970, the country is no more ruled by the military and has now embraced democracy – a
civilian type of government – and still we still have a section 110 in our
criminal law. Section 110 is an upshot of the laziness of Nigerian
legislatures, the Nigerian Criminal Code Act has been promulgated since 1st June, 1916, and has since not been reviewed or
amended. It is really sad. If the law has been reviewed, it would have followed
the way criminal laws are now been written, i.e. where a crime which is a
strict liability offense is so highlighted, and those requiring prove of mental
state uses words like ‘intentionally’, ‘with intent’ etc.
On the other provision, section 251 of
the law states that:
“Any
person who, not being a person serving in any of the armed or police forces of
Nigeria, wears the uniform of any of these forces, or any dress having the
appearance or bearing any of the regimental or other distinctive marks of any
such uniform, in such manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any
other person so to wear such uniform or dress, is guilty of a simple offence,
and is liable to imprisonment for three months or to a fine of forty naira.”
Section 251 of the Criminal Code Act
shares in the criticisms of section 110
above, but also, it is clear that section 251 is a bad law. The controlling
phrase is “as to be likely to bring contempt”. This is a clearly subjective
phrase, the question is what constitutes “contempt on the uniform?”. If the
legislature via the criminal law provision has recluse itself from objectively and
narrowly defining what would amount to “contempt”, then anything subjectively
done to the uniform must be accepted as
licit. Section 251 is vague and is, therefore, void. [see: PDP v. INEC &
Ors (2012) LPELR 9724 (SC)]. The suspect is being robbed of the ‘notice’ of
what he is being held reprehensible for – and this is unconstitutional, see
section 36(6)(a) of the Nigerian 1999 Constitution.
A more important issue that must be
addressed is the jungle-justice the military are exerting on civilians found
culpable as regards these laws. The military is
either equal to the civilians or below them (since they – the military – live
on the taxpayer’s taxes – the civilians
taxes), but never above them, and therefore could not and should not be seen
beating people up on the streets. Even if we agree that civilians could be held
liable under section 110(1) alone, the suspect is still entitled to the
procedural due process promised under section 36 of the Nigerian Constitution.
An instance where the military takes the law into their hands, where they make
themselves the court and executioner of their judgment is devastating. This must be stopped, and the military body and
institutions must be held accountable for this attitude, as it sure shows their
‘products’ are not well-ingrained in the due process requirements of the law since the attitude is quite repetitive. The
initiative taken by the Director, Army Public Relations, Brigadier-General Sani Kukasheka Usman
subjecting the two military officers engaged in the maltreatment of the
crippled man in Onitsha to an assault charge (via their Commanding Officer) is
admirable. This type of attitude puts our feet back in the right direction. At
the end, if we agree that wearing a military-like attire is a crime, then, like
every other criminal case, the suspect
must be subject to the court system, not assault on the streets.
This article will not be complete
without mentioning the relevance of section 39 of the Nigerian Constitution as
it relates to these issues. It is trite that the freedom of expression and its
interpretation is and should be interpreted
broadly. Freedom of expression thus encapsulates wearing a military-type garb.
However, since there has not been a case before a court in Nigeria on this
issue, it is doubtful how the court will explain the fundamental right of
expression and wearing a military-like garb. Still, it is doubtful if any court
would suppress the fundamental right of expression in clothing for a military
‘interest’. The military/government (for whatever reason) might argue they have
an interest in restricting civilians from wearing what they wish, but the assessment
would be if such propounded interest is legitimate/rational enough to suppress
a huge constitutional right as freedom of expression. Thus, from a legal point
of view, section 110 of the criminal code itself is constitutionally infirm as
it intends to restrict the smooth operation of a fundamental right housed by
the constitution, and because of that is void by virtue of section 1(3) of the
Nigerian Constitution. The Constitution is paramount to any other law, the said
Criminal Code Act inclusive.
There are also some arguments flying
around that similar attitude is incriminated in countries like India and the Philippines, the question is, and so what?,
does it mean that incriminating the act is good law?, does it mean Nigeria must
follow suit?, gay rights is observed in Europe and North America, do we observe
the rights?. No doubt, arguments as these are hypocritical
because even countries with advanced military personnel allow their civilians
to wear military-like garbs. The ability of a State to choose laws for her own
people is what sets each State apart. A sanction of civilians in this regard in
today’s Nigeria is not only unnecessary, it is a source of brutality of the common man by military
officers as has been seen repetitively.
In conclusion, we need our laws in our
traditional languages in Nigeria, the merits of doing so are vast. For once, the acts of those in power
could be checked, the masses would know their rights, it would also aid
judicial activeness and explanation on a lot of knotty legal issues as the
court would have had opportunities to explain lots of issues that would have
been brought by lots of people. Rule 35 of the Rules of Professional Conduct
for Lawyers in Nigeria is also a bad rule, so is Rule 34 restricting
Advertisement of legal practice, these rules are in conflict with the freedom of
expression. Lawyers should be able to take the challenge of explaining laws to
people freely, without the fear of the Nigerian Bar Association subjecting him
to a quasi-trial in a disciplinary hearing.
If there is any country that needs
explanations of law to its populace, it is Nigeria, it is confusing why that
effort is being restricted by some rules. Rules should emancipate us, not
restrict us unnecessarily. Also, the Nigerian Army Institutions must be charged
with impacting some legal knowledge in those they release to go on the streets,
especially on the constitutional due process of law, and that they should
refrain from taking laws into their hands, as civilians have rights and should and
cannot be pushed around. An assault charge would most likely stand in a court
of law if the crippled man assaulted in Onitsha chooses to press charges,
regardless of the internal charge by the Nigerian Army. The Nigerian Army can
foreclose a potential legal damages loss if it put her agents in check.
Gbenga Odugbemi
Legal Counsel
Photo Credit – www.nigerianeye.com
