12. The Armed Forces

The Constitution

Section 165: There are Armed Forces of Sierra Leone, made up of the Army, Navy and Air Force and any other branches Parliament provides. Their main functions are to guard the safety and territorial integrity of the State, to take part in its development, and to protect the Constitution.

No soldiers in political office: Members of the Armed Forces are disqualified from election to Parliament and cannot serve as Speaker.

Only Parliament raises forces: Section 166 forbids anyone to raise an armed force except by or under an Act of Parliament.

The Defence Council: Section 167 sets up a Defence Council chaired by the President, with the Vice President, the Minister of Defence, the Chief of Defence Staff, the service commanders and others. It advises the President on defence policy and the administration of the forces, and regulations for the forces may be made with the President's approval.

Military law

The Act: The Republic of Sierra Leone Military Forces Act 1961, as amended, deals with enlistment, terms of service and discipline. It creates offences that apply only to people subject to military law, such as aiding the enemy, cowardice, looting, mutiny, insubordination, desertion, absence without leave and malingering.

Punishments: Military law has its own punishments, such as cashiering, which means dismissal of an officer from the service with disgrace, and dismissal, reduction in rank and stoppages of pay.

Ordinary law still applies: A soldier remains a citizen. Joining the forces adds military law to the ordinary civil and criminal law. It does not take it away.

Superior orders

The dilemma: A soldier's first duty is to obey. But an order to do something unlawful puts him in a dilemma.

R v Smith (1900): In a Cape Colony case from the South African War, a soldier shot a local man on an officer's order. Solomon J said that if a soldier honestly believes he is doing his duty in obeying his superior, and the order is not so plainly illegal that he must or ought to have known it was unlawful, he is protected. The soldier was acquitted.

Keighley v Bell (1866): Willes J said the better view was that a soldier acting under orders that are not necessarily or manifestly illegal is justified by them.

The modern rule: Today superior orders are no defence to an order that is manifestly unlawful, such as an order to commit a war crime. The rule from international law, applied at Nuremberg, is that orders may at most reduce the punishment.

Courts-martial

Trial: The Military Forces Act provides for courts-martial to try people subject to military law, with a judge advocate to advise on law and procedure.

Appeal: The right of appeal from courts-martial has been changed more than once by amendment. Students should check the current Act for the present route of appeal to the civil courts.