Can Soldiers Disobey Unlawful Orders In Nigeria?

Many lay persons believe that soldiers by the very nature of the services they render are expected to obey every superior order given to them whether lawful or unlawful. This school of thought erroneously believes that soldiers do not have the luxury of time to query the orders given to them by their superiors especially during military operations.
This, indeed, is predicated on the fact that most times, they have to act with dispatch. There is obviously no time to make distinctions between what is legal and unlawful.
However, the truth of the matter is that soldiers are obligated to obey all lawful orders and to disobey unlawful ones.
Nigerian Army Act (1960) provides that military personnel have the duty to obey lawful orders.
Nigerian Armed Forces Act (1993) as amended in 1994 states thus, “A person subject to service law under the act, who in such manners as to show willful defiance of authority disobeys a lawful command given or sent to him by whatever means is guilty of an offence under this sub-section and liable, on conviction by a court martial to imprisonment for a term of not exceeding two years or any less punishment provided by the Act.
However, the obligation to obey the orders of their superiors does not include orders that are palpably illegal or manifestly unjust.
Interestingly, every military officer swears oaths upon commissioning. The Oath is not to obey all orders, it is to “preserve” “protect” and defend the Constitution of the Federal Republic of Nigeria against all enemies, foreign and domestic.
When soldiers obey palpably illegal orders, they become personally liable for their actions and would be expected to face court martial for the wrongdoing.
In developed countries, where the rule of law is strictly adhered to, it is easy to bring erring military personnel to book. But in Nigeria, it is not easy to do so.
Those who commit (heinous) crimes during military operations are liable to face war crime charges at the end of such operations or wars.
Nonetheless, apart from the punishment of war crimes, many military personnel pander to their consciences when it comes to committing war crimes by often avoiding committing such crimes.
Pathetically, some so called superior orders are often repugnant to natural justice, equity and good conscience. The law of war prescribes rules on which wars are fought and any military personnel who violates the law of war are liable to face war crime charges.
Nobody really knows how far developing countries like Nigeria are able to obey the law of war.
However, many military personnel in Nigeria who are adherents to the rule of law find it difficult to violate the law of war in spite of what is usually termed superior orders.
A former Nigerian soldier, Mr. Onofua Michael, whose last unit in the service was Guard Brigade Ordinance, Fred Park, Abuja is a case in point.
Michael was allegedly asked by his superior to kill innocent and defenceless civilians but he disobeyed the order because it was palpably illegal.
According to an eyewitness that spoke with The Tide under the cloak of anonymity on Monday, “the refusal of Michael to obey the so called superior orders attracted the ire of the military and became his undoing.
The witness alleged that Michael was arrested and detained and had to face a court martial and sentenced.
He, however, did not state what the sentence was but noted that before the execution of sentence, Michael managed to escape and fled the country.
The eyewitness, who is also a solider did not say exactly where his former colleague was seeking asylum.
He remarked that before his escape, Michael had spent one year in detention and explained that there was a likelihood that he would not like to return to the country to face his sentence.
He pointed out that if the soldier did not flee the country, he would have served out the sentence and summarily executed.
Mr Michael Onofua who served in the Nigerian Army until 2021 hails from Esan Central Local Government Area of Edo State.
He was declared wanted in November, 2021 after he had fled the shores of Nigeria.
Michael exemplifies the plight of many Nigerian soldiers who face the dilemma of either obeying an unlawful order or face court martial for disobedience.
Ideally, it is the reverse that should have been the case, a soldier faces court martial for committing war crimes but not for refusing to obey unlawful orders.
Nonetheless, the Nigerian Army which was once revered for its diligence at peace keeping globally is facing ebbing morals. There is no secret that many soldiers are no longer committed in the work with the Army.
Only recently, a soldier who defected to the camp of the Boko Haram insurgents killed himself before justice could be served on him. Indeed, many soldiers are betraying their colleagues and disclosing vital information to the enemies. That is why the war against terrorism and banditry is unending.
There must be a deliberate effort on the part of the heads of the Nigerian military to ensure rectitude so that soldiering in the country will bounce back.

By: Chidi Enyie