January 28, 2026
In a democracy, the law is not flexible to fear, rumors, or military nostalgia. It is anchored on the constitution. This was the unmistakable message delivered by Senior Advocate of Nigeria (SAN) and one of Africa’s most prominent human rights lawyers, Femi Falana, as Nigeria continues to debate the legal fate of military officers accused of plotting a coup against the administration of President Bola Ahmed Tinubu.
At a time when social media speculation, political anxiety, and historical trauma surrounding military coups are resurfacing in Nigeria’s public space, Falana’s intervention cuts through emotion and misinformation with constitutional clarity. His argument is simple but profound: Nigeria is not under military rule, and therefore, coup allegations cannot be treated with military-era legal instruments.
Speaking during an interview on Channels Television, Falana categorically stated that court-martial proceedings are legally inappropriate for soldiers accused of attempting to overthrow a democratically elected civilian government. According to him, such suspects must be prosecuted in civilian courts, not military tribunals.
“We are under a democratic government, and as far as the constitution is concerned, we have to take them to a High Court,” Falana said.
“The soldiers cannot be court-martialed. They are not trying to remove a military dictator. This is an attempt to remove an elected government — a constitutional government — and to disrupt the constitutional arrangement.”
Why This Argument Matters Now
Nigeria’s long history of military coups has conditioned public perception to associate any coup allegation involving soldiers with immediate court-martial proceedings. However, Falana insists that such reflexive thinking is legally outdated and constitutionally dangerous.
Since Nigeria’s return to democracy in 1999, the 1999 Constitution (as amended) has clearly established the supremacy of civilian authority over the military. Any action that seeks to overthrow a civilian government is not merely a breach of military discipline; it is an attack on the Nigerian state itself.
This distinction is critical.
Court-Martial vs Civilian Courts: The Legal Difference
Falana explained that court-martials are not criminal courts in the constitutional sense. They are internal disciplinary mechanisms designed to handle offenses such as:
Disobedience to superior officers
Desertion
Conduct prejudicial to military discipline
Mutiny within a military structure
A coup against a civilian government, however, does not fall into any of these categories.
Instead, such an act amounts to treason or treasonable felony, offenses clearly defined under Sections 37 and 41 of Nigeria’s Criminal Code and relevant provisions of the Penal Code.
These crimes carry severe penalties and fall squarely within the jurisdiction of civilian High Courts, not military tribunals.
“Once the allegation is that there is an attempt to overthrow a constitutional government, the issue is no longer internal military discipline,” Falana emphasized.
“It becomes a constitutional crime against the Nigerian people.”
Democracy Changes Everything
One of the most powerful aspects of Falana’s argument is its reminder that democracy fundamentally changes how the law operates.
Under military rule, soldiers governed the state, and military tribunals exercised sweeping powers, often outside constitutional constraints. But in a democracy, the military is subordinate to civilian authority, and its members are subject to the same constitutional protections and limitations as every other citizen.
Trying alleged coup plotters through a court-martial, Falana warned, would dangerously blur this line and could set a precedent that undermines democratic norms.
“We must not import military dictatorship practices into a democratic system,” he warned.
Historical Precedent: The Mandara Case
To reinforce his position, Falana referenced a powerful historical precedent from Nigeria’s Second Republic (1979–1983) under President Shehu Shagari.
In the early 1980s, a Maiduguri-based businessman, Mandara, was accused of plotting to mobilize military officers to overthrow Shagari’s civilian government. Despite the involvement of soldiers in the alleged conspiracy, the suspects were not court-martialed.
Instead, the Federal Government charged Mandara in the Federal High Court, where he was tried, convicted, and sentenced to 50 years imprisonment.
“That case remains a landmark in our constitutional history,” Falana noted.
“It clearly established that when the target is a civilian government, prosecution must be before a regular court of law.”
This precedent, Falana argued, has never been overturned and remains binding within Nigeria’s democratic legal framework.
Why Court-Martialing Coup Suspects Is Dangerous
Falana also raised concerns about the broader implications of using military tribunals for alleged coups against civilian governments:
It undermines constitutional supremacy
It erodes judicial transparency
It revives authoritarian-era legal practices
It weakens civilian control of the military
Military tribunals, by design, are not open in the same way as civilian courts, and their procedures are governed by military regulations rather than constitutional safeguards.
In a democracy, Falana insisted, justice must not only be done but must be seen to be done.
Tinubu’s Government and the Test of Democratic Maturity
The unfolding debate places President Bola Ahmed Tinubu’s administration at a defining crossroads. How Nigeria handles alleged coup plots under his leadership will send a strong message — not just domestically, but internationally — about the country’s commitment to democratic rule of law.
Falana’s position suggests that strength in democracy is shown through constitutional discipline, not military shortcuts.
Prosecuting alleged coup plotters in civilian courts:
Reinforces democratic legitimacy
Affirms the supremacy of the constitution
Demonstrates institutional maturity
Protects Nigeria from slipping into authoritarian reflexes
A Warning Against Panic Governance
Beyond the legal technicalities, Falana’s intervention also serves as a warning against governance driven by fear or political panic. History shows that democracies are most vulnerable not when coups are attempted, but when governments abandon constitutional principles in response to perceived threats.
Nigeria’s democratic journey, Falana implied, will not be protected by court-martials, but by strict obedience to the rule of law.
Conclusion: Democracy Is Defended by Law, Not Uniforms
Femi Falana’s argument is not a defense of coup plotters. It is a defense of constitutional order.
In his view, democracy must respond to threats democratically, or risk becoming what it claims to oppose. Soldiers accused of plotting against a civilian government should face the full weight of the law — but in the right court, under the right legal framework, and with full respect for constitutional supremacy.
“This is not new. This is the law,” Falana concluded.
“And democracy survives only when the law is allowed to work.”
As Nigeria navigates another sensitive moment in its democratic evolution, Falana’s voice stands as a reminder that the constitution — not fear, force, or history — must always lead.
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