Should Lawyers Robe Before Courts Martial – Obioma Ezenwobodo
On the 17th September, 2019, a General Court Martial inaugurated by the Chief of Army Staff, Lieutenant General Tukur Buratai commenced the trial of the former General Officer Commanding (GOC) 7 Division, Sokoto State, Major General Hakeem Otiki, over alleged stolen N400million by some soldiers under his command. From a short video clip of the proceedings aired by major electronic news media, lawyers appearing before the said Court Martial were fully robed and this development has raised concerns on the appropriateness of lawyers appearing before Courts Martial to be robed.
Prior to 2016, lawyers appeared before Courts Martial in professional suite attire but on 4th July 2016, the Chief of Army Staff, Tukur Buratai in a convening order for a General Court Martial to try 2 military officers – Major General P.A Falola and Major General I. Sani directed all civil lawyers appearing before Courts Martial to be fully robed in wigs and gowns. In the said convening order, the army chief claimed he derived the power to issue the dress code from section 131(2) of the Armed Forces Act (AFA), A20, LFN 2004.
The above directive by the army chief is not only baseless in law but offensive to subsisting legislations and General Custom of the bar. Section 131 (2) of the AFA provides for persons (called “Convening Officers”) that have the power to convene a General Court Martial of which the army chief is one of them. But the said section 131(2) never empowers the army chief or any other person to prescribe the dress code for civil lawyers appearing before Courts Martial. By virtue of sections 131, 133(5), 134, 135, 136 and Rule 22 of Rules of Procedure (Army) (RPA) 1972 (an English statute applicable by virtue of section 181 of the AFA), a Convening Officer is empowered, amongst other things, to convene a Court Martial by issuing a convening order containing the names, service number, rank and unit of the President of the Court Martial, other members, waiting members, Judge Advocate, liaison officer, short hand writer, stenographer and prosecuting officer. The order must also contain the venue of the court and time of sitting. Furthermore, the order must contain the name, service number, rank and unit of the accused as well as the charge against him.
Nowhere in the AFA or the RPA is the Chief of Army Staff, or any other Convening Officer, authorizes to prescribe the dress code of civil lawyers appearing before a Court Martial. It must be stated that the order of Chief of Amy Staff, Lieutenant General Tukur Buratai directing civil Lawyers appearing before Courts Martial is utterly utra vires his powers. The Army headed by Buratai is just one of the three arms of the Nigerian Military, the other two being the Airforce and the Navy. It is therefore beyond comprehension that the army chief could delve into a matter that concerns the Bar by unilaterally issuing an order that covers other arms of the military in a matter that is purely outside his purview. The Bar or Legal Profession is not under the command of the army chief.
A Court Martial is a military tribunal, on the same status and parity with Code of Conduct Tribunal, Tax Tribunal, Investments and Securities Tribunal and Census Tribunal. These tribunals are inferior courts of record as they are not listed as superior courts of record under section 6(5) of the 1999 Constitution (as amended). The Court of Appeal in the case of Abdullahi v. The Nigerian Army (2009) ALL FWLR (Pt. 500) 667 insightfully summed up the status of a Court Martial thus:
“It must be borne in mind that the General Court Martial cannot be equated to the regular courts where strict procedures are required. It is no more a tribunal and at best it can be equated to jury trial…”
The ethics and conduct of the legal professions are regulated by Rules of Professional Conduct for Legal Practitioners (RPC) 2007, made by the General Council of the Bar and the General Customs of the Bar that have developed over the years. Lawyers by customs do not robe before a tribunal as such courtesy is reserved only for the superior courts of record. It is also a breach of the custom of the bar for a lawyer to robe before a Judge, Magistrate or an Adjudicator/Arbiter that is not himself robed. On the other hand, it would amount to a desecration of lawyers’ robes, abuse of ethics of the bar and subjugation of legal profession for lawyers to robe in wig and gown while appearing before Courts Martial headed by men in Khaki(Uniform).
Lawyers’ robes (wig and gown) is not just a piece of clothes to be worn as a lawyer pleases or at the command of anyone, it is our symbol of dignity, honour and respect. It is regulated by RPA and Rule 45 of the RPA specifically provides for the use of the lawyers’ robes in courts. Rule 45 of the RPA provides thus:
(1) Except with the permission of the Court, a lawyer appearing before a High Court, the Court of Appeal or the Supreme Court shall do so in his robes.
(2) A lawyer shall not wear the Barrister’s or Senior Advocate’s robe –
(a) On any occasion other than in Court except as may be directed or permitted by the Bar Council; or
(b) When conducting his own case as party to a legal proceeding in Court.
(c) When giving evidence in a legal proceeding in Court.
It can easily be gleaned from the above provision that even though a lawyer appearing in any of the under listed superior courts of record is mandated to be robed, the court can exercise its discretion by exempting a lawyer from being robed. These provisions do not apply to inferior courts like Courts Martial and as such, a lawyer appearing before a Court Martial should not be in robes.
It is advised that the General Council of the Bar, NBA and all lawyers should ensure that the image of our noble profession is not dragged through the mud by subjugation of our ethics and practice, as it relates to dress code, under the whims and caprices of the army chief. The Bar must stand up against this strange practice.
Obioma Ezenwobodo Esq
Abuja Based Legal Practitioner and a Military Law Expert
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