Feb 14, 2017

Military attire, civilian camouflage, and their legality in Nigeria | Gbenga Odugbemi

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[1]

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[2] 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[3] 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[4] – 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[5], 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 

[1] 65 million Nigerian adults are said to be illiterates, see: http://www.vanguardngr.com/2015/12/65-million-nigerians-are-illiterates-unesco/
[2] Rule 35 provides: “A lawyer may with propriety write articles for publication in which he gives information upon the law; but he should not accept employment from such publications to advise inquirers in respect to their individual rights.”
[3] On February 7th, 2016
[4] Of the Nigerian Criminal Code Act
[5] In criminal law, before a person can be convicted of an offence, the State/Prosecution must prove that the person had/nurtured a mental state of committing an offence, and secondly, that he actually did the carried out the mental state idea he nurtured – that he materializes or transform the culpable mental state into reality. These two requirements are referred to as ‘mens rea’ and ‘actus reus’. However, some laws describing a crime explicitly state that the State/prosecution need not prove the mental state – the ‘mens rea’, this type of offences are called “strict liability offences”, e.g. when one runs a red light at a traffic stop, it does not matter if the person had the mental state of running the light OR where one is found possessing a controlled drug/substance, the ‘possession’ itself is a crime, there is no need to prove intention of possessing it etc.