By Col BU Okorie (rtd)Esq.

 

A Country’s volume of laws begins with the primary laws passed by a legislature, and go on to the subsidiary legislation made by a person or corporate bodies authorized by the legislature to supplement its enactments. The authorization for subsidiary legislation always comes with a deluge of reasons in support of same. For instance, that the Legislature is ill-equipped to consider all the details of a legislation, or that the wartime or emergency situations cannot await the cumbrous procedure of parliamentary debates. Whatever the case, subsidiary legislation has survived in modern government administration as a child of necessity. They exist as orders, manuals, rules, regulations, circulars and guidelines.

  1. What is Subsidiary Legislation?

Subsidiary legislation means any proclamation, rule, regulation, order, resolution, notice, rule of court, or instrument made under or by virtue of any ordinance and has legislative effect (see https://www.legco.gov.hk>). It is the detailed rules and regulations usually made by government, to provide for technical or procedural details necessary for implementation of ordinances. Subsidiary legislation is important because it contains the administrative details to ensure an Act’s provisions operate successfully. It can be made by the executive or a minister and it applies to the general population; local government authorities or it applies to the people who live in the area or who are personnel of the organization involved.

Section 315 (1)(a) CFRN provides for correct adoption of existing law by virtue of which the Armed Forces Act, Cap   A20, Laws of the Federation of Nigeria 2004 (AFA) which is in pari materia with the British Army Act of 1955 was adopted mutatis mutandis as an Act of Nigerian Parliament. The AFA empowers the C-in-C, service Chiefs and their subordinate Commanders to make orders, rules and regulations facilitating accomplishment of mandates of the military profession contained at S.217(2) of CFRN, 1999 (as amended).

  1. Necessity of Subsidiary Legislation.

The necessity of subsidiary legislation in government or corporate governance stems from the fact that neither the banker who exclusively knows the banking needs of his customers and skills required to meet the customer’s needs nor the commanding officer in the field who knows the nature of the battle ground as well as the strengths and weaknesses of the enemy can achieve the goal for his establishment if his lawful and publicized rules and orders, respectively, are frustrated or disobeyed with impunity by his staffers or soldiers. Herein lies the reason for subsidiary legislation being constitutionally affirmed as a necessity for successful operation of governmental and corporate organizations

  1. Consequently, subsidiary legislation or administrative legislation has become an inevitable trend in modern governance. Subordinate laws have therefore emerged to fill the gaps in the primary parliamentary statutes. E.g. Section 21 of the Banking Act, Cap. 19, Laws of the Federation and Lagos (replaced by the Banking Decree, No. 3 of 1966) provide, inter alia, that “the Minister may make such regulations as may be required from time to time for carrying into effects the provisions of this Act”. And section 26 of AFA  equally provides that “the president may make regulations  governing the commissioning of the officers, the terms of services, promotion, retirement, resignation, dismissal and such other matters concerning officers of the Armed Forces as may seem to him necessary’’. Similarly, Section 218 (3) CFRN 1999 (as amended) provides that “the president may , by directions in writing and subject to such conditions as he may think fit, delegate to any member of the Armed Forces of the Federation his powers relating to the operational use of the Armed Forces of the Federation”.While the banking Act delegates the power “to make such regulations as may be required from time to time for carrying into effects the provisions of this Act” to the minister, Section 26 of AFA authorizes the President to make regulations governing some mentioned subjects and others. Section 218 (3) CFRN 1999 (as amended) authorizes the President to delegate to any member of the Armed Forces of the Federation his powers relating to operational use of the Armed Forces of the Federation. The foregoing sections of constitutional authorities have, no doubt, confirmed the necessity and inevitability of subsidiary legislation in governance which, depending on the context comes in many forms including, rules, regulations, circulars, memoranda, guidelines, and orders. These are all instruments by which government officials or business executives, administer their organizations. The inference here is that without the said instruments such organizations or government departments would fail to deliver on their mandates.

Same is the case with the military profession as a public organization.

  1. Military Orders as Subsidiary Legislations.

Soldiers are always in the business of training for war. It has been said that when they are not dying, they are preparing for how to die. And so all tasks, instructions and information passed across to them  through the chain of command are passed to them mostly  in form of orders. Orders can be operational orders, administrative orders, routine orders or mission specific orders. Orders are generally categorized into Standing orders like the Harmonised Terms and Conditions of Service or Particular orders, like the order to perform a specific task/ duty,   either of which must be lawful. The AFA provides for both types of Orders under sections 56 and 57, respectively as follows:

 “Section 56(1): A Person subject to service law under this Act who, in such manner as to show wilful defiance of authority, disobeys a lawful command given or sent to him by whatever means is guilty of an offence under this subsection and liable, on conviction by a court martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2) A person subject to service law under this Act who, whether     

willfully or through neglect , disobeys a lawful command is guilty of an offence under this subsection and liable, on conviction by a court martial, to imprisonment for a term not exceeding two years or any less punishment by this Act.

 Section 57.  Disobedience to Standing orders

  • A person subject to service law under this Act who contravenes or fails to comply with a provision of an order to which this section applies, being a provision known to him, or which he might reasonably be expected to know, is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
  • This section applies to standing orders or other routine orders of a continuing nature made for any formation, unit or body of troops or for any area, garrison or place, or for any ship, train or aircraft”.

 

  1. Legal Status of Military Orders:

A cursory look at the deluge of enabling statutes on governmental and corporate levels reveals that the delegates of powers certainly include the President, the Governors, Industrial and Professional Bodies and service Chiefs and subordinate military commanders. If it is reasonable to argue that wartime or emergency measures cannot await the cumbrous procedure of parliamentary debates, it cannot be gainsaid that any objection to validity of standing orders being part of Military Law is subversive of the power of the President as the Commander- in- Chief of the Armed Forces of Nigeria.  Section 218 of CFRN 1999 (as amended) empowers the President as the Commander-in-Chief of the Armed Forces of Nigeria (AFN) to appoint Service Chiefs and to determine the operational use of the Armed Forces of the Federation. Sections 8 and 18 of AFA categorically affirm the constitutional power of the President to appoint service chiefs and endue them with delegated authorities to make particular and standing orders for accomplishment of Military operations assigned to their units and formations.

Military orders, whether particular or standing has been recognized and affirmed by both constitutional and judicial imprimatur. For instance, Section 36 (12) of the CFRN 1999 (as amended) provides as follows:

“Subject as otherwise provided by this Constitution , a person  shall not be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a state, any subsidiary legislation or instrument under the provisions of a law”

Let me hereby submit that with the constitutional and other legal authorities so far cited above, it cannot honestly be gainsaid that the AFA is “an Act of the National Assembly “ or that the Harmonised Terms and Conditions of Service (HTACOS) with other similar Standing Orders constitute “any subsidiary legislation or instrument under the provisions of a law “, as mentioned  above.    

  1. Validity Test Of Military Orders:

Section 283 of AFA has empowered the President to make regulations generally for prescribing or providing for any act for the purpose of giving effect to the provisions of the AFA while section 284 provides for powers exercisable in subsidiary legislation by stating that “ a power conferred by this Act to make regulations , rules , orders , or other instruments shall include power to make provision for specified cases or classes of cases, and purposes of those regulations , rules , order, or other instruments”

Sections 56 and 57 of AFA (Supra) and many judicial authorities have prescribed some tests  which subsidiary legislations by the military authorities must pass for them to be valid as law. Both authorities insist that such command or orders must be Lawful. In the case of Brigadier-General Gabriel Anyankpele V. The Nigerian Army (2000) 13 NWLR, 2009 the Supreme Court held as follows:

“For the offence created by section 57 (1)of the Armed Forces Decree No. 105 of 1993 which provides that a person subject to service law under the Decree who contravenes or fails to comply with a provision of an order to which the section applies , being a provision known to him  or which he might reasonably be expected to know is guilty of an offence under the section and liable on conviction by a court martial to imprisonment for a term not exceeding two years or any less imprisonment provided by the Decree, knowledge of the order is of essence . The combined effect of Sections 283, 284 and 254 (7) of the Decree is that evidence must be adduced at the trial to prove that the order was published in the sense that the receipt of same was acknowledged in writing and copies of same posted at recognized places to make it binding on officers and soldiers under the command of the Commanding Officer. Evidence must be adduced at the trial to prove that the order was published.”

The power of appropriate superior authority to make subsidiary legislation in the military is limited only by, “giving effect to AFA” provisions, lawfulness of the subsidiary legislation or order and due publicity of the order. Knowing this is as important as knowing the Summary and Court –Martial trial procedures dramatized in my Book entitled ‘’Introduction to Military Law Practice and Procedure in Nigeria” which was personally launched by the then Chief of Army Staff.

 

  1. The fact is that Military effectiveness depends upon obedience to orders. The general rule, therefore, is that a subordinate officer must not judge the danger, propriety, expediency or consequence of the order he receives from his superior, he must obey. Nothing can excuse him but a physical impossibility. On the other hand, the obedience of a soldier is not the obedience of automation.  A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.

See US Army Court of Military Appeals, Calley case, Judgment, 21 December 1973

In the case of Nwaogu v. State (1972) 3 SC; (1972) 2 E.C.S.L.R. 244, the Court held that an officer or a soldier is only bound to obey lawful orders and he is liable if he obeys an order not strictly lawful. It has thus been held that an order to eliminate a person without just or lawful cause is unlawful and obedience to it involves a violation of the law and the defence of superior orders is untenable.

 

  1. It is note worthy that Military Manuals, Operational Orders and Guard details are published as standing Orders under Section 57 of AFA and they pass the validity test of being lawful, well-publicized, with the penalty therefor prescribed in the AFA. A specimen charge under section 57 of AFA hereunder affirms that the offence is defined and the penalty therefor is prescribed in the AFA which is a written Law. Why then should Defence lawyers attempt to invalidate same by citing Section 36 (12) under CFRN 1999 (as amended) which includes subsidiary legislations as constitutional and lawful? Thank God that the Supreme Court rejected such an attempt by defence in the case of Nigerian Air Force V. James, (2002) 18, NWLR, 322-323 (Onu, J.S.C) when it held that the Air Force Manual on Financial RegulationsLawfully disallowed the former Chief of Air staff from authorizing the withdrawal of Ten Million Naira (N10,000,000) as “he is not authorized to disburse such large sum of money for welfare purposes” under the said Manual.

 

                                 SPECIMEN CHARGE UNDER S.57 OF AFA.

DISOBEDIENCE TO STANDING ORDERS CONTRARY TO

        SECTION 57(1) OF THE AFA

in that he, at Mogadishu Barracks Abuja on 15/ 01/2025 failed to register his motorcycle NO. ABX 21 with the Cantonment Military Police before using it contrary to Army Headquarters Garrison Standing Order No.32 requiring owners of private motorcycles to so register their motorcycles before using them, an  order which he knew or might reasonably be expected to know.     

 

  1. Conclusion

This write-up has discussed the origin and raison d’être of subsidiary legislations which includes Military Orders. It has equally been rationalized that subsidiary legislation is a necessity in modern governance and for corporate organizations, including the Nigerian Military  to accomplish their mandate.

In view of the above, any attempt to escape punishment by hiding under Section 36 (12) or any other provision of the CFRN 1999 (as amended) is unconstitutional and an exercise in futility.