Nigerian Army Declares 104 Soldiers Missing, Says They 'Absconded,' Are 'Deserters'

The Nigerian Army has declared 104 soldiers from the 162 Amphibious Battalion as deserters following their disappearance with service rifles after a terror attack in Borno State. This declaration triggers severe legal consequences under the Armed Forces Act (Cap A20, Laws of the Federation of Nigeria 2004), including potential court-martial, imprisonment, forfeiture of pay, and freezing of bank accounts. The incident highlights the stringent application of military law, particularly Section 60 of the Act, which defines desertion, and the procedural steps involved in such declarations, often following a period of unexplained absence. This development underscores the critical balance between military discipline and the welfare of personnel operating in high-risk environments.

In a significant development impacting military discipline and personnel welfare, the Nigerian Army recently declared 104 soldiers attached to the 162 Amphibious Battalion as deserters. These soldiers reportedly went missing with their service rifles following a deadly terror attack on their base in Borno State in early June. The declaration, communicated through an internal military signal, states that the personnel "absconded from their place of deployment to an unknown destination" after the attack by suspected Islamic State West Africa Province (ISWAP) terrorists.

This action by the Nigerian Army carries profound legal ramifications for the affected soldiers and their families, immediately subjecting them to the stringent provisions of military law. Beyond the immediate operational concerns, the incident brings to the fore critical questions regarding the legal framework for desertion, the investigative processes preceding such declarations, and the rights of military personnel in conflict zones. This article will delve into the legal basis for declaring soldiers as deserters under Nigerian law, examining the relevant statutes, procedures, and potential consequences for those so designated.

The legal framework governing the conduct and discipline of military personnel in Nigeria is primarily enshrined in the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria 2004 (the "Act"). This Act provides comprehensive provisions for the organization, administration, and discipline of the Nigerian Army, Navy, and Air Force. Central to the current situation are the provisions relating to absence from duty, specifically Sections 59 and 60, which address "Absence without leave" (AWOL) and "Desertion," respectively.

Section 60 of the Armed Forces Act defines desertion broadly, encompassing situations where a person subject to service law leaves any service of the Armed Forces with the intention of remaining permanently absent from duty, or absents themselves without leave with intent to avoid serving before the enemy or at a place outside Nigeria. A key distinction from mere AWOL is the element of intent to permanently abandon duty or avoid specific hazardous service. Historically, the Nigerian military has faced challenges with desertion, particularly in the context of counter-insurgency operations in the North-East, with previous instances of soldiers being declared missing and later as deserters, sometimes with subsequent reports of their return. The Act also outlines the powers of arrest for deserters and absentees without leave in Sections 241 to 245.

The declaration of 104 soldiers as deserters, particularly after a terror attack, immediately triggers the severe punitive mechanisms of the Armed Forces Act. Under Section 60(1) of the Act, a person who deserts is guilty of an offence and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment. However, if the desertion is committed with the intent to avoid serving before the enemy, the penalties can be significantly harsher, potentially including life imprisonment or even the death penalty during wartime.

The process for declaring a soldier a deserter often begins with an inquiry into absence without leave. Section 173 of the Act stipulates that where a board of inquiry reports that a person has been absent without leave for a period of not less than twenty-one clear days, a record of this report, unless subsequently annulled, "shall have the like effect as a conviction by a court-martial for desertion." This provision is crucial as it allows for a presumptive declaration of desertion without an immediate court-martial, based on prolonged unexplained absence. The immediate consequence of such a declaration, as seen in this case, includes the freezing of bank accounts and a nationwide notification for their apprehension.

Practitioners must understand the distinction between AWOL and desertion. While Section 59 deals with AWOL, which is a less severe offence, desertion under Section 60 requires proof of intent to permanently abandon duty or avoid specific services. However, military law often presumes intent after a certain period of absence, typically 30 days, transforming AWOL into desertion. The case of *SMQA III OWEITEIGHA JOSEPH VS THE NIGERIAN NAVY & ORS* (2019) highlights the judicial interpretation of these provisions, where the court considered the procedures for declaring an officer AWOL and subsequently a deserter, emphasizing the need for due process.

While military courts-martial are empowered to handle such serious offences, they are expected to adhere to principles of fair hearing, including the right to defense counsel, presentation of witnesses, and cross-examination. Decisions of courts-martial are not final and can be appealed to the Court of Appeal and, on points of law, to the Supreme Court of Nigeria, as provided by Section 183 of the Act. This appellate mechanism serves as a safeguard against potential miscarriages of justice, especially in cases where soldiers might have been captured, incapacitated, or acted under extreme duress during an attack, rather than intentionally deserting. The context of a terror attack, as in this instance, introduces complexities that warrant thorough investigation before final punitive measures are taken.

The declaration of 104 soldiers as deserters by the Nigerian Army underscores the uncompromising nature of military law, particularly in a nation grappling with persistent insurgency. For legal practitioners, this development highlights the critical need for a nuanced understanding of the Armed Forces Act, especially Sections 59, 60, and 173, which define and establish the legal consequences of absence from duty. Families of affected soldiers require urgent legal counsel to navigate the implications of frozen accounts and potential court-martial proceedings, advocating for thorough investigations that consider all circumstances, including the chaos of a terror attack, before final determinations of intent are made.

Moving forward, it will be crucial to observe whether the Army's internal administrative processes for declaring desertion are followed meticulously and if the affected soldiers, or their representatives, are afforded their full rights under military law, including the right to a fair trial and appeal. This incident serves as a stark reminder of the delicate balance between maintaining military discipline and ensuring justice for personnel serving in exceptionally dangerous conditions. Practitioners should advise on the importance of due process and explore all available legal avenues to protect the rights and welfare of these soldiers and their dependents.