by Orji Agwu Uka
This work submits that it is indeed an offence to wear military uniforms without authorization except under the exception provided by the law but the military cannot unilaterally constitute the Prosecutor and the Judge by charging a person of wearing army uniforms, finding such a person guilty by themselves and meting out the appropriate punishment to such a person.
In January 2014, a retreat was organized by my office as part of the activities marking the New Year to enable us relax, refocus and galvanize ourselves in the right direction to ensure the growth of the firm in the New Year and beyond. Two of my colleagues at the event, wore the popular three-quarter length army camouflage combat shorts, which have for decades remained a popular fashion choice among young men and women the world over.
On my way home that day, while scrolling through my twitter timeline, a news item caught my attention. The headline, carried by at least six online news media and blogs read: “Nigerian Army bans Nigerian celebrities from wearing the Nigerian Military camouflage.”
According to the news reports, the Nigerian Army, in a statement dated 21st January 2014 and circulated earlier that week, expressed its displeasure with the Nigerian celebrities who wear the military gear – strictly meant for military personnel – in music videos, photo-shoots and concerts. The statement read in part:
“This is to inform the general public and most especially Nigerian celebrities to abstain from the use and abuse of the Nigerian Military camouflage. Several investigations were carried out and we noticed the camouflage is mostly being used by Nigerian celebrities in music videos, photo-shoots and concerts. In this (sic) same videos and photo sessions, Nigerian celebrities like ‘Jesse Jags’ smokes (sic) marijuana while putting on the Nigerian Military camouflage. Henceforth, any civilian found GUILTY of putting on the camouflage irrespective of their social status will be dealt with severely”.
Jesse Jagz on Military attire
Over the course of our existence, whether as kids or as adults, everyone has either owned (and therefore dressed in) a military camouflage or at least has or knows a sibling, friend or mate that does or once did. We might have also heard tales of or indeed seen military personnel “severely dealing” with civilians for putting on military or para-military gears including but not limited to camouflage shorts, combat boots, Police ‘designer’ vests etc.
In issuing the statement banning (or purporting to ban) the use (or abuse) of military wears, were the Army authorities on sound legal footing? In other words, is it an offence under Nigerian law for civilians to wear military uniform or is the use of military uniform a crime simply because the Army in a statement said so? If these questions are answered in the affirmative, what are consequences of their violation? These and other pertinent queries form the basis of this piece.
Before considering the relevant provisions of law, it is necessary to offer a brief explanation of some requisite legal principles, which are rendered in an easy to understand manner (pardon the inevitable legal jargons as only the inevitable ones survived editing) to enable a logical rendition of this discuss.
There are a number of fundamental principles that run through the jurisprudence of most common law countries including Nigeria and for which there are hardly any departures. One, a person cannot be convicted of a crime unless the offence is defined and the punishment thereof is stipulated by a written law. See Section 36(12) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999.
Secondly the Constitution prohibits retroactive criminal legislation. Thus, a person can only be found guilty of a wrong which constitutes an offence as at the time the act or omission took place. This is unlike what transpired during the military era where for instance the Buhari/Idiagbon regime could create an offence (say drug trafficking) with retroactive effect to catch even those who had previously committed the act. Therefore, if for example it is the Army Statement that promulgated the offence of “wearing army gear” (and this article by no means suggests that) then it is safe to say that only those caught wearing military gears post 21st January 2014 can be found guilty. So that exculpates my colleagues. It also exculpates you or your sibling or friend who once owned or wore military attire.
Another point worthy of note is that there are certain salient features which must be present before an act or conduct can be described as an offence and a person found guilty of same. The offence must be created by the appropriate legislative authority (e.g. the Lagos State House of Assembly), the offence must be created by a written statute which must set out sufficient ingredients including the penalty, to make the offence distinctive. This raises the question whether the statement issued by the Army qualifies as a criminal legislation.
Wizkid too
Another of such principles is that which reads in its original latin form: actus non fasit reum, nisi men sit rea. This literally translates: a person cannot be found guilty of a crime, except his mind also be guilty. This is the most important but also probably the most misunderstood principle in criminal law. It is this principle that ensures that one or indeed several persons may witness a man shoot another person or otherwise cause his death and at the end of the trial, the Judge finds him not guilty on account of lack of proof, insanity, intoxication, provocation, self defence etc (did someone shout Oscar Pistorius?). There are however certain exceptions to this principle as the legislature may define an offence as a strict liability offence, such that a person that commits same is guilty notwithstanding his state of mind or circumstance.
With the benefit of the above background, we shall now proceed to examine the questions earlier posed in light of the topic of this discuss.
Legislative powers in Nigeria and the various States are vested in the the National and State Houses of Assembly respectively. See Section 4 (1) and (6) CFRN 1999 and crime is as a general rule a residual matter meaning that it is the States’ Houses of Assembly that have the legislative competence to make laws prohibiting certain conducts, acts and/or omissions and designating them as crimes/offences. Hence we have the Criminal Code Laws of the various States in the Southern part of Nigeria and Penal Code Laws applicable in the Northern States.
Section 109 of the Criminal Code provides:
109. Any person who, not being a person serving in the armed forces of Nigeria nor a member of the police forces, and with intent that he may be taken to be such a person or member as aforesaid-
(a) wears any part of the uniform of, or
(b) wears any garb resembling any part of the uniform of, a person serving in the armed forces of Nigeria, or a member of the police forces, is guilty of a misdemeanour and is liable to imprisonment for one year.
Gentlemen as we can see, the Criminal Code prohibits wearing army or military uniforms. End of the story? Hang in there.
To constitute an offence under Section 109 of the Criminal Code, four conditions must co-exist, to wit:
There must be a person;
The person must not be serving in the armed forces of Nigeria or be a member of the Police Force;
The person wears any part of the uniform of, or wears any garb resembling any part of the uniform of, a person serving in the armed forces of Nigeria, or a member of the Police Forces; and
The person must wear such uniform with intent that he may be taken to be such a person serving in the armed forces of Nigeria, or a member of the Police Forces.
From the above, it appears beyond doubt that the most important ingredient of the offence so created above is not in wearing military uniform itself, but in wearing someone’s military uniform with the intent of being mistaken for that person (you may call it impersonating a military personnel). The punishment as we can see is one month imprisonment or a fine of ten naira. Under Section 77 of the Criminal Law of Lagos State, 2011 the offender is liable to imprisonment for 3 (three) years, no mention is made of the option of fine.
The closest corresponding provision in the Penal Code is Section 133 which provides:
133. Whoever not belonging to a certain class of public officer wears any dress or carries any token resembling any dress or token used by that class of public officer with the intention that it may be believed that he belongs to that class of public officer shall be punished with imprisonment for term which may extend to 6 (six) months or with a fine which may extend to N40.00 (forty Naira) or with both.
The requirement of proving that the act of wearing the uniform was with intent that such a person may be taken to be a member of the Armed Forces or the Police (under Sections 109 CC, 133 Penal Code and 77 Criminal Law of Lagos State) means that once the Prosecutor fails to prove such intention, the person caught wearing the army uniform escapes liability under the above sections because although he did the actus (wearing the army uniform) his mens (intention) was not guilty.
However Section 110 of the Criminal Code appears to be more suitable for purpose. The Section provides:
110. Any person who-
(1) not being a person serving in any of the armed forces of Nigeria, wears the uniform or any part of the uniform of such forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of such uniforms; or
(2) not being a person holding any office or authority under the Government of Nigeria or of any part thereof, wears any uniform or distinctive badge or mark or carries any token calculated to convey the impression that such person holds any office or authority under the government;
is guilty of an offence and is liable to imprisonment for one month, or to a fine of ten naira, unless he proves that he had the permission of the President or of the Governor of a State to wear such uniform or dress, badge or mark or to carry such token:
Provided that this section shall not apply to the wearing of any uniform or dress in the course of a stage play or in any bona fide public entertainment.
The punishment for this offence is imprisonment for one month, or a fine of N10.00 (ten naira), yes N10.00, unless such a person can prove that he had the permission of the President or of the Governor of a State to wear such uniform or dress, badge or mark or to carry such token. For those residing in Lagos State, the consequences are dire. Section 79 of the Criminal Law of Lagos State, 2011 provides:
110. (1) Any civilian who:
(a) wears the uniform or any part of the uniform of the Armed Forces or the Police, or any dress having the appearance or bearing any of the regimental or other distinctive marks of such uniforms; or
(b) not being a person holding any office or authority under the Government of Nigeria, wears any uniform or distinctive badge or mark or carries any token calculated to convey the impression that such person holds any office or authority under the Government
is guilty of a misdemeanour and is liable to imprisonment for two years, unless he proves that he had the permission of the relevant authority to wear such uniform or dress, badge or mark or to carry such token.
(2) This section shall not apply to the wearing of any uniform or dress in the course of a stage play or in any bona fide public entertainment.
The Sections above as we can see, exempt the wearing of any uniform or dress in the course of a stage play or in any bona fide public entertainment. The issue therefore turns on the question of what amounts to bona fide public entertainment. Does smoking marijuana in music videos amount to bona fide public entertainment? This is the million dollar question as no court appears to have pronounced on this.
Furthermore, Section 111 of the Criminal Code provides that any person who sells or gives any uniform, part of a uniform or any dress, badge or mark, as in the last preceding section mentioned, to any person who is not authorized to wear the same, is guilty of an offence and is liable to the same penalties in section 110 (i.e. one month imprisonment or a fine of N10.00. Under Section 80 of the Lagos Law, the offence is a felony and the offender is liable to imprisonment for 5 (five) years. Again, no mention is made of the option of fine.
In other jurisdictions, say the United States of America, there are laws against civilians dressing in military uniforms or even military personnel who are not involved in active duty, subject to certain exceptions. These laws are published in the 10 United States Code (USC) Subtitle A, Part II, Chapter 45, Sections 771 and 772.
Section 771 provides that except as otherwise provided by law, no person except a member of the Army, Navy, Air Force, or Marine Corps, as the case may be, may wear the uniform, or a distinctive part of the uniform, of the Army, Navy, Air Force, or Marine Corps; or a uniform any part of which is similar to a distinctive part of the uniform of the Army, Navy, Air Force, or Marine Corps.
Under Section 772 of the code, there are some exceptions notable among which is that an actor in a theatrical or motion-picture production may wear the uniform of that armed force while portraying a member of the Army, Navy, Air Force, or Marine Corps, provided that the portrayal does not tend to discredit that armed force. Although the US Supreme Court in the case of Schacht vs. United States, 398 U.S. 58 (1970) while giving a very liberal interpretation of the word, “theatrical production” went ahead to strike the words, “if the portrayal does not tend to discredit that armed force” from the statute as an unconstitutional abridgment of freedom of speech.
As we can see, under the United States Code (10 USC 771), no person except a member of the U.S. Army may wear the uniform, or a distinctive part of the uniform of the U.S. Army unless otherwise authorized by law. Additionally, no person except a member of the U.S. Army may wear a uniform, any part of which is similar to a distinctive part of the U.S. Army uniform. The next issue is the enforcement of the code.
Under the US legal system (as is the case in Nigeria), district attorneys (Attorneys General, Director of Public Prosecutions and other prosecutorial authorities) are given a wide latitude of what law violations to prosecute and which ones to ignore. For instance, Sodomy or Bigamy is still illegal under our laws. But, unless there are special circumstances involved (most likely for political reasons), you will be hard-pressed to find a Prosecutor (who may well be guilty himself) charging and prosecuting this offence.
As a result, it appears that the general public in such jurisdictions so long as they stay away from distinctive items such as insignia, badges, and tabs, are given a wide liberty to wear military uniform for fashion or entertainment e.g. on Halloween in the United States.
The military generally upholds traditional and conservative values. These values translate into the dress codes of their personnel. It is as result of this that civilians and military personnel alike are expected to comply with the specific regulations regarding dress code and wearing decorations, insignia, medals etc. to uphold and maintain the honor that comes with the military uniform.
In the case of Nigeria, there is in addition, the little matter of the precarious situation in Nigeria where hoodlums and terrorists especially in North East have been known to attack unsuspecting victims while clad in military uniforms.
A corollary of what we are saying therefore is that the military did not ban the wearing of military camouflage by the public especially celebrities, they merely reinforced what the law already provided. Furthermore, the Army in their statement categorically stated that the military gears are strictly meant for military personnel and not for entertainment. However, as we have seen, the Criminal Code exempts the wearing of any uniform or dress in the course of a stage play or in any bona fide public entertainment. Again we ask, what amounts to bona fide public entertainment?
The Military ordinarily has no jurisdiction to deal with civilians. If a civilian contravenes the law of Nigeria, in accordance with the rule of law, such a person is charged to court and not dealt with summarily in same way the military court-martials can deal with military personnel who are subject to service law.
This work submits that it is indeed an offence to wear military uniforms without authorization except under the exception provided by the law but the military cannot unilaterally constitute the Prosecutor and the Judge by charging a person of wearing army uniforms, finding such a person guilty by themselves and meting out the appropriate punishment to such a person.
Whether the military can therefore “seriously deal” with an offender beyond the one month imprisonment or fine of N10.00 provided under the Criminal Code (or two years in Lagos State) is a different thing entirely. But do you really want to find out? Is experience always the best teacher?
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Orji Uka is a legal practitioner with the law firm of Babalakin & Co. and has been in dispute resolution practice since his call to bar in 2012. Orji attended Abia State University, Uturu Nigeria where he obtained a 1st class LL.B (Hons) degree in 2010. He tweets from @Orjiuka
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.