Military Law in Africa: An Introduction to Selected Military Codes

AuthorBy Major Aibert P. Biaustein
Pages02

As a means of proaiding readily available material in the comparatit.r lnw held. thr .Military Law Reviezr, periodical& publishes artioles on tho milite~~,legd system of other n& tions. This article continues that practice in presenting an introduction to thr military justice codes of three African nations: Sigrria, Ghana, and the Sudan.

I. INTRODUCTION

Similarities rather than differences highlight most studies in comparative la\\.. And the study of comparative military law constitutes no exception. This is to be expected. Armed forces throughout the norld face the same problems. They must of necessity make provision for such universal crimes as homicide and theft; they must of necessity make provision for such common and peculiarly military offenses as desertion. And there are only so many legal responses which can be developed to meet these problems.

Further, most codes of military justice are based upon-and in substantial measure copied from-ther older codes. America's first Articles of War differed little from the Articles of War which governed the troops of England's George 111. As is to be expected, the emerging nations of Africa hare likewise modeled their mili*This article is adapted from a paper pmented to The Jvdge Advocate General's School, U.S. Army, under the military legal thesis program. The opinions and emeiusimd preaented are those of the author and do not necessarily represent the view of The Judge Advocate General's Sehoai or anyother governmental agency.

.'JAGC, USAH; Mobilization designee, The Judge Advocate General's School, U.S. Army: Prafersor of Law and Law Librarian, Rutgers University, Sehoal of Law, South Jersey Dimion; A.R., 1941, University of Michigan; LL.B., 1948, Columbia University Law School; Member of the Bars of the Stater of New York and New Jersey and of the U.S, District Court for the Southern District of New York and the U S

Tax Court.

tary Ian. on patterns developed for the nrmed farces of the farmer colonial powers.

Of course there are differences. Puniahment far the "possession of or smoking hashish ur hango" is prwided fur in section 36 of the Aimed Forces Act of the Sudan And section 78(2) of the Aimed Forces Act of Ghana sets fmth special punishments far "hars"--a ' boy" being defined in section 98 as ''il male person over the ape of thirteen !ears eniolled in the Arm) and belov the pre-acnbed maximum age " Yet the similarities are fa, more significant.

But befole m&'mg an? of the characteristics of African outline the essentially limited scope iican nations are discussed in this he Sudan. Such discussion further

Kh3- Sipeiia. Ghana and the Sudan? To understand the nature and Lmpoitanie oi these cuuntms in the totality of African law, it is necessaiy to provide some introductory comments on the na-ture of Africa and its legdl background.

11. THE XASY AFRICAS

\Yith an area of 11,600,000 squdre miles-nearly four times as great as the continental Vnited States-Africa possesses many diffeient and vaiied cultures. There IS no one Africa. Fiom the legal point oi viev there are at least five Africas. Only one of these will be considered in this study.

>loat inteieat today centers on "emerging" or "deielopinp" Africa-meaning the ne\% nations South of the Sahara. That elmmates ani consideration of the Fmted Arab Republic (gen-as a Middle Eastern country) and the other inations bordering on the lilediterranean. "South n the parlance of Afncanists, also implies "Sorth of the Lampopo." since that river divides dexeloping Africa from the South African Republic. And South A f i m 1s a nation Trhich differs greatly frrm the test of the continent 111 almost erergthing. mcludinp the passersion of a legal sgstem baaed on Roman-Dutch la$\- vhich 1s itself urnque. A third Africa ohich 1s outside the

C O ~ P ~ E S oi emerging A f i m consists of the still-existing Spanish

and Portuguese teiritm LBS, none of which 1s close to independence.

41 100 iiim

AFRICAN MILITARY LAW

"New" Africa is usually characterized as either Francophonic I

or Anglophonie. The distinction is essentially valid: in term of ties with former colamal powers, in terms of language, in terms of economies and, certainly, in terms of law In Francophonic Africa are the nations ahich once comprised French West Africa, French Equatorial Africa and lladapascar, plus the three nations which were formerly Belpian colonies: Republic of the Congo(Leopoldville), Rwanda and Burundi. Since Belgian law is French law with minimal exceptions, a11 of these countries have essentially the same legal heritage and are de~lopinptheir own legal systems

on this foundation.

The fifth Africa-the me of mast importance in the beginnings of this militarr law study-is Anglaphonic Africa. It is usually broken down as follows:

West Africa Sigeria, Ghana, Siewa Leone and Gambia East Afnci: Kenya, Tanzania, Uganda, Sudan and, for the

Central Africa: Rhodesia, Zambia and Malawi

High Commission Territories : Bechuandand, Basutoland and Swaziland

This includes a11 of Africa except for the long-independent states of Liberia and Ethiopia. The farmer has a legal system based almost entirely on American law, and thus must also be considered as Anglophonic.

Ethiopia is a special exception in all discussions about the African continent. It has a civil code based on the French pattern and B criminal code drafted by a Swiss scholar.s Yet its military law, with notable exceptions, retains an English orientation, and Ethiopia must be classified as Anpluphumc for the purposes of a study on African military laa..

It is the military law of three selected countries in Anglophonic Afncs which will be considered here.

Sigeria 1s by far the most important country in Africa. One out of every five Africans lires within the borders of this Federa-

most part, the Somali Republic

C n l ~

____

1 Franeophanic Afnea iefeis to that part of Africa where the European language vied is French; Angiaphonie Africa refeis to that parr where the English is the European language used

9 See ETHIOPIAK

CODE OF 1960, Fegarit Gazeta. Extraordinary lmve

No. 2. 1960 (drafted by Prafeisoi RenC Darid).

I See ETHIOPIAN PE~AL

CODE OF 1957, Beganr Gsreta, Extraordinary IJ~YB

No. 1, 1957; ETXloPIX CRIIIYAL PROCEDI'RE CODE OF 1961, Segailt Gazeta, Extraordinary Issue Pia. 1, 1Y61 (drafted b? Dean Jean Graven, Faculty of Law, Unirersity of Geneva)

tion. Its ~6,000,000-pIus population makes It more than twice as large as any other nation an the continent. It is likewise of prime importance in Africa's economic developments. Thus the study of every phase af African law must (or nt least should) begin with a studp of the law of Sigeria.

Ghana is also of prime importance in the study of African law. This was the first of the "neu+ nations ta gain its independence. And while independence only dates back to 1967, Ghana 1s still the

'Cnew"

country with the most experience with the law and (with the possible exception of Siperia) the one with the most literature on its legal system. The special relationship between the military law of Canada and Ghana also makes this an important country to be considered.

There are several reasons why the military Ian of the Sudan is likewise considered in this study. To begin with, the Sudan is the most populous nation of Anglophanic East and Central Africa. But that IS not the most important reason. What makes the Sudanese Ian of special interest is its amalgam of English, Indian and Islamic legal principles. It is also important because it has provided the model for the penal code of Northern Sigeria, which is different from the penal law of the rest of Nigeria.

Before considering specific provisions of the military laws of these three countries, a prelimmars word is necessary on the general influence of English lau-particularly English penal law-on Anglophonic Africa.

111. INFLUESCE OF ENGLISH LAW

There is no one generalization which can be made concerning the influence of English law on African nations. As a leading African legal authority, Antony Allott, has pointed out:

The mode ai introduction of English law into newly acquired terri-tories under the Crown, whether cd~nieb, protectorates, protected stater oi trust territories, varies (partly as a cnn~equenee of the way in which the particular territory was acquired). Firit of all, B dmtmetmn isusudi? made between settled, and rmyueird or esdrd colonies.* [Empha-SI9 I" onglnal.]

Further, the modes of reception of English law vary considerably. These are classified by Professor dllott under five headings: (a) Introduction by English mttlers.

(b) Introduction by the ~mperrsi government by Order ~n Covnell or Act of the imperial parhamenf.

* AUUTT, Es8A18 IX AFRICAN LAW 3 i1960).

*OD &:(&E

AFRICAN MILITARY LAW

(e) General reception of all English law, oi of all English law on a

particular topic (e.g. the law of crime, the law of real property by local ordinance). (d) Adoption of specific English enactments. (e) Adaptation and re-enactment of English iaw, >n locsl ordinance8 (e.g. company Isw OT adoption 18") .J

And, of course, much English law came to the former African colonies second-hand, through the adoption of Indian laws based on English precepts.

On the influence of English penal law in particular, Ghana Justice N. M. Ollennu makes this statement reeardine the four

~I

Commonwealth West African countries (Gambia, Sierra Leone, Ghana and Nigeria) :

As TO criminal law, It must be panted out that, apart from Northern Nigeria, which because of predominant Islamic infiuenee adopted the Sudan Penal Code (based upon the Indian Penal Code), the criminal ISWand pmcedure ~n each of the terntorleg save Sierra Leone is almost entiiely governed by Crimmal Codes and Criminal Procedure Codes, panned by the V ~ T ~ O Y S legialaturer and based upon the English criminal law. As far BJ Sierra Leone 1s concerned The eriminal law n the eom-man law BP to erime.0

The present penal codes of both the Sudan and Northern...

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