Falana’s Exclusive Jurisdiction Fallacy: When One Act Violates Two Laws, Court-Martial and Civil Jurisdiction Can Co-Exist

Wale-Adewale ADELEKE

MaTaZ ArIsInG
Dallas, Texas

When Femi Falana, SAN, argued that soldiers accused of plotting to overthrow President Bola Ahmed Tinubu cannot be tried by court-martial but must be prosecuted exclusively in civilian courts, he appeared to be defending democratic constitutionalism. In truth, his position rests on a logical error: false exclusivity grounded in jurisdictional absolutism.

Falana’s central claim is that treason and treasonable felony are offences “clearly defined under Nigerian law” and therefore “fall squarely within the jurisdiction of civilian courts.” Court-martial proceedings, he adds, are meant only for breaches of military discipline “committed strictly within the military hierarchy.”

Taken together, however, these two propositions do not support his conclusion. They contradict it. It is a settled principle of criminal law that a single course of conduct may violate more than one statute at the same time. The law does not insist that an act wear only one legal character.

A serving soldier who plots to overthrow an elected government may at once:

commit treason under Nigeria’s criminal statutes—an offence against the constitutional order; and,

commit mutiny, insubordination, or conduct prejudicial to service discipline under the Armed Forces Act—an offence against military order.

These are not alternative wrongs. They are concurrent. They protect different legal interests: one the Republic, the other the chain of command. The same conduct can therefore attract dual criminal character.

To insist that only one legal regime may respond is not a constitutional principle; it is a conceptual mistake. Falana concedes that court-martial proceedings exist to punish breaches of military discipline. But this is precisely what a coup plot by serving officers represents.

The obligation of obedience to constitutional authority is not external to military discipline; it is its foundation. Loyalty to civilian command is not merely a political value—it is a legal duty embedded in military service itself.

To argue that an attempt to overthrow an elected government “transcends” military discipline is to misunderstand what military discipline is for. A soldier does not shed his service obligations because his misconduct also has constitutional implications.

Falana treats jurisdiction as if it must be exclusive: either civilian courts or military tribunals. This is the heart of the error—false exclusivity.

Where one course of conduct violates multiple legal regimes, the State is entitled to elect which offence to prosecute and in which forum, provided constitutional safeguards are observed. This is routine across legal systems: from regulatory crimes that are also penal offences, to acts that attract both state and federal jurisdiction.

Civilian jurisdiction does not extinguish military jurisdiction. Contrary to Falana’s claim, in this case where one act violates two laws, they are not mutually exclusive. They are concurrent.

What Falana advances is not a constitutional mandate but jurisdictional absolutism—the idea that the existence of one forum automatically nullifies another. The law recognises no such rule.

Falana relies on a Second Republic precedent: the Mandara case, in which a Maiduguri-based businessman accused of mobilising soldiers to overthrow President Shehu Shagari was tried and convicted in a civilian court.

But Mandara demonstrates prosecutorial choice, not jurisdictional exclusion. That the State elected to proceed in a civilian forum does not mean it was constitutionally barred from invoking military jurisdiction against serving officers. A precedent of selection is not a rule of prohibition.

The core mistake in Falana’s reasoning is the assumption that because the political target is a civilian government, the offence cannot also be military.

That is a category error.

The legal character of an act is not defined by whom it seeks to remove, but by which duties it violates. Here, two duties are broken: one owed to the Republic, and another owed to the chain of command.

The law is not required to pretend that only one of these injuries exists.

Falana is right that treason belongs in civilian courts. He is wrong to claim that this truth strips military courts of jurisdiction. His own reasoning—that court-martial exists to enforce discipline—concedes the very basis for its applicability.

This is not a choice between democracy and militarism. It is a recognition that one unlawful act can offend more than one legal order—and that the State may respond through either, so long as due process is respected. The question is not where the harm is felt, but which duty was broken. In this case, both were.

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