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Constitutionalism must anchor discipline in Nigerian Armed Forces 11 Nov 2025

The Nigerian Armed Forces occupy a critical position in the architecture of the Nigerian state. Once instruments of authoritarian control, they have since become indispensable to national stability and security under democratic governance. Beyond defending the nation’s territorial integrity, the military frequently supports civil authorities in addressing internal security challenges, disaster response, and peacekeeping operations across the continent. These roles demand discipline, courage, and sustained personal sacrifice.

Yet, behind the structure of command and the ethos of service lies a recurring constitutional dilemma: the balance between institutional discipline and individual rights. The Nigerian Constitution, under Section 217, establishes the Armed Forces of the Federation and subjects them unequivocally to civilian authority and constitutional control. This subordination to the rule of law is not a formality; it is the legal and moral anchor that distinguishes a professional military in a democracy from one that operates outside it.

At the heart of recent judicial scrutiny is the constitutional right of military personnel to voluntarily disengage from service. Section 306 of the 1999 Constitution (as amended) guarantees that any person appointed or selected to an office established by the Constitution may resign by simply writing to the relevant authority. Such resignation becomes effective once received. This provision reflects the constitutional aversion to forced or compulsory labour, reaffirmed by Section 34(1)(c), which protects every person – including members of the armed forces – from being compelled to serve against their will outside the scope of lawful duties.

However, the Armed Forces have, in practice, often resisted the application of this principle, insisting that officers cannot resign until they have served a minimum of 15 years, as prescribed under the Harmonised Terms and Conditions of Service (HTACOS), 2017. This policy, though designed to preserve manpower and operational readiness, has now come under judicial challenge for contravening the Constitution’s supremacy clause. 

In a growing line of decisions, including Labinjo v. Nigerian Navy and Akerele v. Nigerian Air Force, the National Industrial Court has held that once an officer tenders a letter of resignation, and the letter is received by the relevant authority, the employment relationship terminates automatically. The insistence on continued service despite resignation, the court reasoned, violates constitutional safeguards and veers dangerously close to a regime of involuntary servitude.

The Labinjo decision does more; it also exposes a deeper structural malaise in Nigeria’s governance ecosystem – the chronic disregard of judicial authority by state institutions. The refusal of the Nigerian Navy to obey the judgment in Labinjo v. Nigerian Navy is symptomatic of a wider institutional culture, where executive and administrative bodies, including the military, treat court orders as negotiable rather than binding. 

This pattern of defiance undermines the rule of law and erodes public confidence in the judiciary. Enforcement mechanisms against the state remain weak and cumbersome, constrained by procedural immunities, bureaucratic inertia, and, in some cases, sheer institutional indifference.

The result is a disquieting paradox: while the courts reaffirm the supremacy of the Constitution, their pronouncements often struggle to find expression in practice. But the integrity of any democracy depends not only on the existence of constitutional remedies but on their enforceability. Where the state is both a violator and a reluctant respondent, other citizens’ faith in the justice system is diminished. 

To address this anomaly, military ethos must be guided by constitutional fidelity. The armed forces cannot claim to defend a democracy while disregarding its foundational charter. True discipline flows from lawful authority, not arbitrary power.

However, institutional reform is essential to reverse the menacing trend. Restoring confidence in the rule of law and reinforcing institutional discipline both require deliberate and systemic reforms. The enforcement of judicial decisions – particularly against public institutions – must move beyond rhetoric to structured accountability. In this regard, a few policy measures are recommended.

First, legislative oversight must become more proactive. The National Assembly’s committees responsible for justice, defence, and public administration should monitor and publish periodic compliance reports detailing the extent to which government agencies adhere to court orders. Public transparency on compliance would create moral and political pressure for obedience.

Second, disciplined budgetary releases should be tied to legal compliance. Persistent defaulters – ministries, departments, or agencies that ignore subsisting judgments – should face targeted fiscal consequences, including the suspension of relevant budgetary releases until compliance is achieved.

Third, executive supervision must be reinvigorated. The Attorney-General of the Federation, as the chief law officer, bears constitutional responsibility to ensure that court judgments against the state are respected and enforced. This duty requires active coordination between the Ministry of Justice and other arms of government to prevent institutional defiance. 

Last but by no means least, judicial assertiveness is essential. Courts must not hesitate to deploy contempt powers against officials who obstruct or trivialise judicial authority. Respect for the judiciary cannot depend on persuasion alone – it must be guaranteed by consequence. Ultimately, the test of true discipline – military or civil – lies not in the speed of command but in the readiness to submit to lawful authority. In a constitutional democracy, that authority is, and must remain, the judiciary.

Apart from disobedience to court judgments, another area of concern is military court martials. While other democracies have progressively embedded human rights safeguards into their military justice systems, Nigeria’s court-martial process remains largely insular and resistant to reform. The Armed Forces Act vests extensive disciplinary powers in commanding officers and convening authorities, blurring the line between accuser and adjudicator. 

Although court-martial proceedings are recognised as “courts of law” under Nigerian jurisprudence, their procedural safeguards often fall short of the constitutional guarantees of fair hearing under Section 36. Access to legal representation is inconsistently provided, decisions are rarely published, and appellate review, though available to the Court of Appeal, is slow and often impractical for detained personnel. 

By contrast, jurisdictions such as the United Kingdom and South Africa have modernised their military justice systems to ensure civilian oversight, transparency, and alignment with broader constitutional standards. Nigeria’s model, rooted in command control, rather than independent adjudication, risks perpetuating impunity and undermining the credibility of military justice as an instrument of both discipline and fairness.

For Nigeria, aligning military practice with constitutional guarantees and international standards is both a legal necessity and a governance imperative. Modernising Nigeria’s military justice system requires a shift from command-driven adjudication to rights-based accountability. The court-martial process must evolve beyond a tool of discipline to an instrument of justice that reinforces, rather than diminishes, constitutional legitimacy. 

Introducing statutory civilian oversight – such as an independent review board or military ombudsman – would strengthen transparency and ensure that disciplinary measures meet constitutional and human rights standards. Clearer procedural safeguards, guaranteed access to counsel, and public reporting of court-martial outcomes would also enhance confidence in the system. 

The objective is not to weaken military discipline but to entrench it within a framework of legality and fairness. A military justice system that respects due process and judicial authority ultimately builds a more professional force, one aligned with democratic values and accountable governance.

Several other reforms are also critical to bridging the gap between command structure and constitutional compliance. The HTACOS and related instruments need to be revised to reflect constitutional provisions, explicitly recognising the right to resign, the prohibition of forced labour, and the non-negotiable requirement of fair hearing. 

Current codified processes for disengagement need to be reviewed to ensure that they balance operational readiness with individual autonomy. Predictability in exit mechanisms reduces conflict and reinforces professionalism. Independent review panels should oversee disciplinary proceedings to guarantee impartiality and compliance with Section 36 of the Constitution. Internal justice systems must demonstrate fairness, not just authority. 

Furthermore, a centralised enforcement protocol, supervised by the Attorney-General of the Federation, should ensure timely compliance with judgments involving military or paramilitary institutions. Bureaucratic nonchalance toward court orders must attract administrative consequences. As part of the system of checks and balances, parliamentary defence committees should publish annual compliance and transparency reports, covering disciplinary actions, judicial enforcement, and respect for service members’ rights. Civilian monitoring of the military is a safeguard of democracy, not a threat to it.

Ultimately, sustaining discipline in the armed forces requires fidelity to constitutional order, not deviation from it. A military establishment that aligns command with legality strengthens both national security and democratic stability, ensuring that service to the nation never slips into subservience to power.

Funmilayo Odude is Partner at Commercial and Energy Law Practice (CANDELP).