Criminal Liability Of Wearing Armed Forces Uniform In Nigeria -By Chidera Nwokeke

Do you know that it is an offence for a police officer and other paramilitary bodies to wear military camouflage? Do you know it is an offence for a wife, fiancée, child or relatives of an armed force member to wear their camouflage or even to use it and snap pre-wedding pictures with it? Do you know that it amounts to the offence of conspiracy against a member of the armed forces to release their uniform to anyone else? Do you know that, it is not a violation of your right to freedom of expression when you are apprehended for unlawfully wearing a camouflage? Do you also know that there are persons that can still wear armed forces uniform even while they are not a member? This article will determine the abovementioned questions.

It is worthy to note that in this present Nigeria, the respect for our laws, national symbols is far into the desert and if nothing is done about it, it will wander into the island and virtually become a mirage. It is kooky and grotesque to see those who are meant to enforce and protect our laws infracting and aiding others to contravene the provisions of our laws. In Nigeria, it is not new to see a member of the armed forces giving out his uniform or any of his camouflage to the fiancée or wife to snap pre-wedding pictures or their children wearing same or even members of the Police and other paramilitary bodies.

In consideration of the security threat and purpose, the legislature deemed it fit to outlaw or regulate the use of armed forces uniforms by persons who are not their members. But the question that begs for answer is, the outlaw of the use of uniforms of armed forces (which include their camouflage) has it been able to reduce security problems and impersonations?

The pith and thrust of this article, is to ascertain the legal implication of wearing these uniforms by persons who are not their members. This article will also succinctly consider the laws restricting the use of these uniforms, and also ascertain whether the members of the armed forces can personally deal with offenders or are they to bring them before the court.

Section 110 of the Criminal Code provide thus:

Any person who – unlawfully wearing the uniform of forces, etc L.N. 112 of 1964, 1967 No 27.

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 the armed 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 or 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.

A perusal on the above section shows that it is unlawful for a person who is not a member of the armed forces to wear their uniform. The armed forces of Nigeria includes: Nigerian Army, Nigeria Navy, Nigerian Air force. This simply means a member of the Nigerian Police force or other paramilitary bodies that wear the uniform or any part of the uniform (camouflage) of the armed forces are liable under Section 110 (1) Criminal Code.

However, the Nigeria Police can only use the uniform (camouflage) when in joint operation with the military or on special operation such as specific anti-riot missions as may be permitted by the president of the country who is the GCFR. Apart from these reasons and the exceptions below, a police officer can be held liable for committing an offence under Section 110 Criminal Code.

Perusing through the provisions of Section 110 Criminal Code, it is manifestly evident that there are only two exceptions or instances a person will not be liable under this section.

1. If it is worn with the permission and consent of the president or Governor of a State.
2. If it is worn in the course of a stage play or in any bona fide public entertainment.

From the above exceptions, it shows that an actor or actress or music artiste can wear the armed forces uniform but they can only wear it in the course of a movie shoot or in any genuine public entertainment. So aside these instances, if they should wear these uniforms, they can be held liable under this section. Going by the above exceptions and section, you will agree with me that even an officer in the armed forces does not have the power to permit or allow or agree to allow any person that is not a member of the armed forces to wear their uniform or any part of it thereof.

In our present Nigeria, we see instances where an officer of the armed forces will allow the fiancée or wife or children to put on camouflage to walk about in the street or even snap pre-wedding pictures with it and post on Facebook. Can these persons be held liable? I answer in the affirmative and strongly contend that they can be held liable until they prove that they have the permission of the President or Governor or they are in stage play or in any bona fide public entertainment. It is apropos and kosher at this point to state that an officer who allows or agree to allow his uniform by those who are not members of the armed forces can be held liable for conspiracy to commit any offence not a felony.

Section 517 Criminal Code provides thus: “Any person who conspires with another to commit any offence which is not a felony or to do any act in any part of the world, which if done in Nigeria would be an offence but not a felony and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a misdemeanour and is liable to imprisonment for two years. The offender cannot be arrested without warrant.

The court in the case of BABARINDE & ORS V STATE (2013) LPELR-SC.169/2012, held that Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act in an illegal means. The actual agreement constitutes the offence and it is not necessary to prove that the act has in fact been committed. – KAYODE v STATE (2016) LPELR-SC.83/2012. To prove conspiracy and be able to secure conviction, the prosecution must prove against the officer or member of the armed force (1) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. (2) Individual participation in the conspiracy by each of the accused person and this position was held in the case of GARBA v COP (2007) 16 NWLR (PT 1060) 378 @ 405.

The prosecution in proving this offence of conspiracy against the officer must prove their case beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge of conspiracy are proved by evidence.- COP v AMUTA (2017) 4 NWLR (Pt. 1556) p. 379 @ 384. In the instance of an officer snapping pre-wedding picture with the fiancée and she is putting on his camouflage, such an officer can be held liable for conspiracy for agreeing with her to commit an offence under Section 110 of the Criminal code, which is not a felony.

The penalty for any person who contravenes the provisions of Section 110 is just 1 month imprisonment or a fine of N 10 (Ten Naira) which is laughable though. The essence of the restriction on the use of this uniform (camouflage) from the police and other paramilitary bodies is to streamline its use and to avoid the abusive use of it, in view of the security implications and concerns raised on the clamour, duplicity and proliferation of camouflage uniforms in the country. Section 110 (1) of Criminal Code is replicated in Section 79 of the Criminal Law of Lagos State, 2011 and the penalty for the offence is 2 years imprisonment with no option of a fine.

Furthermore, Section 111 of Criminal Code makes it an offence for “any person who sells or gives any uniform, or part of a or any dress, badge or mark, as in the last preceding section mentioned, to any person who is not authorised to wear the same, is guilty of an offence and is liable to the penalties prescribed in the said section”. So, from this section, tailors and all this Aboki sellers that sells camouflage to persons who are not authorised to wear same are liable under this section. For the prosecution to secure conviction, they must show that there was a selling or giving away of such uniforms or any part thereof and the person it was given to, is not authorised to wear same.

To boot, Section 251 of Criminal Code provides that “any person who, not being a person serving in any of the armed or police forces of Nigeria, wears the uniform of any of these forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform, in such manner or in such circumstances as to be likely to bring contempt on that uniform, or employs any other person so to wear such uniform or dress is guilty of a simple offence, and is liable to imprisonment for three months or to a fine of N 40 (Forty Naira)”.

An inspection on the above section shows that it is also an offence for a person who is not a police officer to put on their uniform or any part of it thereof but that is not our interest in this article. The above section made no room for an exception like Section 110 did. In consideration of the above section and Section 110, one will summarily run to the conclusion that Section 251 Criminal Code is used as a way to limit one of the exception in Section 110 which provides that ‘you can wear the uniform in the course of bona fide public entertainment or in a stage play’ but the uniform should not be brought into contempt by the manner it is used. The question that begs for answer is what amounts to bringing contempt on the uniform? There is no judicial authority that has given interpretation of Section 251 of Criminal Code but in my humble opinion what amounts to bringing contempt on the uniform is when the uniform is used in a disrespectful or in a disdain or abhorrence manner that the respect people had for it reduces.

It is apposite to state that it is not a violation of our right to freedom of expression as to express ourselves in the clothes of our choice. Expression is a particular way of phrasing an idea which can be done by the way we dress. Section 39 of 1999 CFRN “Every person shall be entitled to freedom of expression….” By virtue of Section 45 of the 1999 Constitution places a restriction on Section 39 of 1999 CFRN if such law is reasonably justifiable in a democratic society in the interest of defence…. The question that crosses the mind is, the provisions of Section 110, 111 and 251 of the Criminal code which restrict the use of armed forces uniform, is it reasonably justifiable in a democratic society and in the interest of defence of national security. I answer in the affirmative and reasonably believe that the law was made to reduce security issues which are global problem and reduce impersonation and accord respect to our national symbols which includes the use of uniforms. However, a person can bring an action for violation of his fundamental right to dignity of human person if he is tortured or subjected to inhuman or degrading treatment for wearing armed forced uniform.

Where a person is apprehended for being in possession of armed forces uniform or any part of it thereof, the person is fully entitled to the procedural due processes provided for in Section 36 of 1999 Constitution. The armed forces cannot unilaterally constitute the prosecutor and the judge for wearing their uniforms and has no jurisdiction to deal with civilians. If any person contravenes any provision against the use of the armed forces uniform, such person should be charged to court and not this unnecessary assault and battery that they mete on offenders.

In conclusion, it is an offence to wear armed forces uniform or any part thereof without permission from the president or Governor or if you are not using it for stage play of for bona fide public entertainment. Ignorance of the law is not and never an excuse. It is therefore necessary for the public to respect our laws and national symbols of authority including the use of uniforms because it is what distinguishes the military from others. Also, the intention of the legislatures in enacting this law is not to restrict your freedom to expression to any dress of your choice but to avoid impersonation, to protect the country and the need to respect national symbols. I also suggest that officers that abuse and bring the armed forces uniform to disrespect by giving it to their children or fiancée for pre-wedding pictures should be punished and they will serve as examples to others.

Written by Chidera Nwokeke

Chidera Nwokeke, is a graduate of Law from Ebonyi State University, a law school candidate. He is academically motivated and has passion for research in several areas of law. He has a keen interest in Dispute resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at Nwokekechidera@gmail.com or 08120945787