Military justice and its impact on democracy (1)

By Matthew Kukah   |   02 September 2015   |   12:13 am  

JusticeFIRST, I am most gratified and honoured to be again, invited to address this august body to which I believe I should now consider myself to be an informal member.

I have served under two Justices of the Supreme Court and one Chief Justice of the Federation in the course of my work for my country. I have presented two keynote addresses at the annual Conferences of the Bar and another keynote address at a national meeting of the section on Elections.

This is not an honour I take lightly. I therefore want to thank the members of this august body for inviting me to share my thoughts with you on a subject I am keenly interested in, namely, the struggle for a just and democratic Nigeria. Our routes and emphasis might be varied but I am sure, we are heading for one direction in the quest for justice.

I am not sure why you have paired me with Professor Akin Oyebode. First, the man is a Professor of international repute and one of our nation’s extremely exciting and exceedingly brilliant academicians.

Not only is he a Professor, his wife is also a reputable lawyer while his three children are lawyers. Is it just that the Bar should throw me into this den of lawyers with no legal protection? I seriously think and believe that this calls for a probe.

When I received your invitation and saw the topic on Military Law, I really did not know where to start. First, I am not a lawyer and have never been a witness in a coup trial or a court martial. Professor Oyebode’s paper is quite simple, with no legal technicalities and it has honestly answered all the questions a layperson would be asking.

Therefore, I have nothing to add. Rather, I have opted to tread a slightly different path and expand the scope of our interrogation to look a bit more closely at the nature of the scars of military rule as they concern Law.

I have decided to do three things very quickly and briefly. First, I want to argue that we need to look at where we have come from the point of view of our criminal justice system after military rule.

Secondly, I will highlight some of the Decrees, the hallmark and legacy of military rule. Finally, I will try to respond to the issues of seeking how to balance freedom, human rights with justice. 1: Military Rule and Transitions To Democracy: Transitions from military or civilian dictatorship to Democracy are a science of its own.

To address the consequences, countries have had to resort to such remedies as Truth and Reconciliation Commissions as a means of ending the past and planning for the future.

Some of my experience at Oputa Panel will form the basis of my short reflections. First, any form of dictatorship makes the rule of law the first casualty.

The suspension of the Constitution is usually the first step and that means that the rule of law is replaced by the rule of men. Often these men are merely a cabal who go by different names such as Revolutionary Council, Supreme Military Council, Armed Forces Ruling Council and so on, depending on if it is a civilian or a military dictatorship.

The rule of the few determines the fate of the people. The second tragedy of this system of government is that the individual gathers all the treads of power into his or her hand and merely defines what constitutes justice.

The state becomes subsumed in the personality of the individual. Thus, the survival of the Head of State becomes tied to that of the State or the President and because he is the state, any attempt to question his powers is synonymous with treason. That is why, for any one to attempt to remove him from his seat automatically attracts the death sentence.

The third point is the fate of the Judiciary and Parliaments. Under a dictatorship, citizens often find themselves unable to access justice because the Judges tend to ensure the will of the state.

The suspension of the Parliament denies people their voice as they cannot be represented. The Media is often threatened and unable to exercise its role as being both mirror and watchdog for the society.

This is why all nations must continue to struggle for Democracy as the best and perhaps for now, the only viable means of ensuring the free flow of ideas which enriches a society. This is why, the world renowned Nobel laureate, Professor Amartya Sen observed that where there is no freedom, a people cannot develop or grow.

Today, we are in a Democracy in Nigeria and it is not a gift we should toy with. In the course of this struggle, men and women have lost their lives, suffered incarceration, intimidation and blackmail. We have come from an ugly past and the challenge now is for us to move forward but guided by the law and due process.

This is a very difficult challenge that requires discipline because, as we know from the study of transitions to Democracy, very often, people believe that the only sign that there is a new dawn is in the number of people in prison by hook or crook.

We saw some of this for example after the independence of Zimbabwe, Zaire after Mobutu, the end of apartheid in South Africa or Liberia after Doe.

We learn from the late President Mandela that first of all, for the purpose of holding an angry nation together, building a community, managing public expectations often requires more patience and tact and listening to the small inner voices that cry for justice and fairness to all. When societies come from the background of military or civilian dictatorships, it is often very difficult to imbibe the democratic ethos.

Often, changing the mindset, creating a more inclusive, non-discriminatory society is a serious challenge. However, the beauty of Democracy is that it offers us such platforms as Political Parties, where perceived enemies or those divided by class, gender, ethnicity and so on, often find a common tent.

Therefore, political parties have a great role to play in ending sectarianism and strengthening the sense of shared values and national cohesion. No matter the temptation, we must never pull back from the struggle to ensure that a culture of rule of respect for rule of law, human rights is firmly in place so as to protect ordinary citizens and ensure the development of an inclusive society, away from tyranny.

Let me now just briefly highlight some of the military Decrees that we had during the period of military rule to show why we must appreciate and nurture what we have today.

I will also show why the military itself must develop the correct democratic ethos and seek the best way to align its legal architecture with the pursuit of the democratic ethos for building a fair society.

• To be continued tomorrow • Bishop KUKAH, Catholic Bishop of Sokoto, delivered this as Remarks at the 55th Annual General Conference of the Nigerian Bar Association, NBA, held at the International Conference Centre, ICC, Abuja,



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