Should Lawyers Robe Before Courts Martial By Obioma Ezenwobodo Esq

On the 17^th 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 4^th 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:

• 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.
• A lawyer shall not wear the Barrister’s or Senior Advocate’s
  robe –
• On any occasion other than in Court except as may be directed
  or permitted by the Bar Council; or
• When conducting his own case as party to a legal proceeding in
  Court.
• 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,
[email protected]^[1]

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