Sambo Dasuki |
But as soon as INEC announced that all arrangements had been put in
place for the distribution of the remaining permanent voters cards in
readiness for the February 14 election the NSA began to sing a different
tune. At that juncture, President Goodluck Jonathan convened a meeting
of the Council of State. The NSA and the security chiefs were curiously
invited to the meeting with a view to convincing the Council members to
endorse the postponement of the elections. To their utter dismay, they
failed to achieve the illegal objective as the Council declined to
support the postponement of the elections. The Presidency had wanted the
advisory body to usurp the constitutional duty of INEC by taking a
"decision" on the postponement of the election.
Illegality of election postponement
In a desperate bid to blackmail INEC to postpone the elections, the NSA wrote a letter to INEC to the effect that the armed forces could not provide security for the elections because of the operations in the north east region. By writing directly to INEC on the security situation in the northeast region the NSA usurped the functions of the National Security Council. That is the only body that has the constitutional duty to "advise the President on matters relating to public security including matters relating to any organisation or agency established by law for ensuring the security of the Federation." The Council which is established under section 153 of the Constitution is comprised of the President, Vice-President, the Defence Minister, Chief of Defence staff, Minister of Interior, Minister of Foreign Affairs, Inspector-General of police and National Security Adviser.
Illegality of election postponement
In a desperate bid to blackmail INEC to postpone the elections, the NSA wrote a letter to INEC to the effect that the armed forces could not provide security for the elections because of the operations in the north east region. By writing directly to INEC on the security situation in the northeast region the NSA usurped the functions of the National Security Council. That is the only body that has the constitutional duty to "advise the President on matters relating to public security including matters relating to any organisation or agency established by law for ensuring the security of the Federation." The Council which is established under section 153 of the Constitution is comprised of the President, Vice-President, the Defence Minister, Chief of Defence staff, Minister of Interior, Minister of Foreign Affairs, Inspector-General of police and National Security Adviser.
In his characteristic manner of allowing his aides to exercise powers
on his behalf President Goodluck Jonathan allowed his National Security
Adviser and the security chiefs to coerce the Independent National
Electoral Commission last week to postpone the 2015 general elections by
six weeks. A regime that has waged a war on terror in a cavalier
manner for six years has undertaken to defeat the dreaded Boko Haram
sect within six weeks. On account of the military operations in the
north east region the security chiefs claimed that the armed forces
would not be in a position to provide security during the elections.
Having been blackmailed the Independent National Electoral Commission
found itself in a fix in justifying the postponement.
Embarrassed by the military tactics the chairman of INEC, Professor
Attahiru Jega claimed that the postponement was anchored on section 25
of the Electoral Act, 2010 as amended. In my reaction to the
development, I did point out that "The provision does not support the
postponement of a general election in the entire country but 'in the
area or areas' where there is violence or actual threat of a breakdown
of law and order. Since the reason for the postponement of any election
must be 'cogent and verifiable' it is crystal clear from the press
conference addressed by Professor Jega last week that INEC did not
verify the misleading claim of the NSA and the security chiefs as
required by the law." The reason adduced for the postponement cannot be
said to be cogent as the military operations against the insurgents are
limited to 14 out of the 774 local government council areas in the
country
By forcing INEC to postpone the elections, the security chiefs violated
section 158 (1) of the Constitution which stipulates that the electoral
body "shall not be subject to the directive or control of any other
authority or person." By subjecting INEC to its whims and caprices in
the circumstance, the security chiefs equally breached sections 76(2),
116(2), 132(2) and 178(2) of the Constitution which have vested the
power to fix election dates on the electoral body. As if that was not
enough the security chiefs undermined the authority of the
Commander-in-chief of the armed forces contrary to section 130 of the
Constitution and usurped the powers conferred on the National Security
Council set out under Part 1 of the Third Schedule to the Constitution.
It is indubitably clear that the security chiefs conspired with the
presidency and the ruling party to stage a coup against the
Constitution.
In the Peace Accord signed by political leaders in Abuja last month it
was expressly stated that security forces shall maintain neutrality
before, during and after the elections. By using the National Security
Adviser and the security chiefs to cause a postponement of the election
President Jonathan has violated the Accord. No doubt, the cowardly
conduct of the security chiefs has emboldened the dreaded Boko Haram
sect. Having been made to believe that the sect has made it impossible
for Nigeria to conduct a national election its notorious leader,
Abubakar Shekau has threatened to deal ruthlessly with the multinational
joint task force. In rejecting the story of the security chiefs they
should be reminded that elections are held in Libya, Pakistan,
Afghanistan, and Iraq where governments are fighting terrorists. Or are
they not aware that the Yobe State electoral body conducted local
government elections in 2013?
Illegality of Deploying Soldiers for Election Duties
Contrary to the misleading bravado of the security chiefs I wish to submit, without any fear of contradiction, that the Constitution, the Electoral Act and the Armed Forces Act have not provided any role for the armed forces in the conduct of elections in Nigeria. It ought to be realised that in peace time the armed forces have no constitutional role in the maintenance of law and order. Even in the north east region where the war on terror is being pursued the President had to declare a state of emergency to authorise the adoption of extra-ordinary measures, including the deployment of the armed forces, for the restoration of law and order pursuant to section 305 of the Constitution. To prevent abuse of powers the President is required to seek and obtain the approval of the National Assembly for the declaration of a state of emergency in any part of the Federation.
No doubt, President Olusegun Obasanjo engaged in the illegal deployment
of the army for the manipulation of the 2003 general elections.
However, the courts have consistently enjoined the Federal Government to
desist from involving the armed forces in the conduct of elections.
Thus, in the lead judgment of the Court of Appeal in YUSUF v OBASANJO
(2005) 18 NWLR (Pt) the Court of Appeal held that "It is up to the
police to protect our nascent democracy and not the military, otherwise
the democracy might be wittingly or unwittingly militarised. This is not
what the citizenry bargained for in wrestling power from the military
in 1999. Conscious step or steps should be taken to civilianise the
polity to ensure the survival and sustenance of democracy".
The court reiterated its views in the case of BUHARI v OBASANJO (2005) 1
WRN 1 at 200 when it stated that "in spite of the non-tolerant nature
and behavior of our political class in this country, we should by all
means try to keep armed personnel of whatever status or nature from
being part and parcel of our election process. The civilian authorities
should be left to conduct and carry out fully the electoral processes at
all levels". In upholding the judgment of the lower court the Supreme
Court stated in BUHARI v OBASANJO (2005) 50 WRN 1 at 313 that the State
is obligated to ensure that "citizens who are sovereign can exercise
their franchise freely, unmolested and undisturbed".
Notwithstanding the clear pronouncements of the Courts on the
illegality of involving the armed forces in the conduct of elections
President Obasanjo decided to deploy several battalions of soldiers to
many states for the 2007 "do or die" general election. It is on record
that President Jonathan has continued the practice of deploying the
armed forces for intimidation of voters and the rigging of elections in
favour of the ruling party. I am not unaware that the armed forces are
currently engaged in ensuring internal security in at least 28 out of
the 36 states of the Federation. The anomalous situation has now been
extended to the maintenance of law and order during elections. Unlike
what obtained under the defunct military dictatorship in Nigeria the
armed forces are no longer permitted to perform police duties in any
manner whatsoever.
A fortnight ago, the Federal High Court, sitting in Sokoto, declared
the involvement of the armed forces in elections illegal and
unconstitutional. The presiding judge, Justice Mohammed Rilwan said that
"other than for the purposes of protecting Nigeria's territorial
integrity, there is no constitutional provision that allows for the
deployment of the military for elections." If the President is desirous
to deploy soldiers for the 2015 elections the judge advised him to
request the National Assembly to enact a law to that effect.
It is submitted that the deployment of the armed forces for the
maintenance of law and order during elections cannot be legally
justified in view of section 215(3) of the Constitution which has vested
the Police with the exclusive power to maintain and secure public
safety and public order in the country. However, the President is
empowered by virtue of section 217(2) of the Constitution to deploy the
armed forces for the "suppression of insurrection and acting in aid of
civil authorities to restore law order". This, in effect, means that
before the armed forces may be involved in the maintenance of law and
order there must have been insurrection or civil disturbances which
cannot be contained by the Police. The Constitution never envisaged that
the armed forces will usurp the powers of the Police with respect to
the "preservation of law and order" in any part of the country.
Thus, by the combined effect of sections 215 and 217 of the
Constitution it is abundantly clear that the power of the President to
deploy the armed forces for internal security is limited to (a) the
suppression of insurrection including insurgency and (b) aiding the
police to restore order when it has broken down. To that extent, it is
illegal and ultra vires on the part of the President to deploy the armed
forces to maintain law and order during elections. In the circumstance,
the Police should be strengthened to discharge the duty of ensuring
internal security in the country while the armed forces are restricted
to the defense of the nation's territorial integrity.
Conclusion
In defending their illegal interference in the democratic process the authorities have asserted that the armed forces are neutral and that they should not be dragged into politics. They should be advised to tell that to the marines. When the speaker of the House defected to the APC last year did the Inspector-General of Police, Mr. Abba not declare his seat illegal and unconstitutional? Did the police chief not withdraw the police orderlies attached to the Speaker? Did the Police not attempt to prevent the speaker from presiding over the proceedings of the House? Yet when speakers and other legislators decamped from opposition parties to the ruling party their orderlies were not withdrawn by the Police.
Conclusion
In defending their illegal interference in the democratic process the authorities have asserted that the armed forces are neutral and that they should not be dragged into politics. They should be advised to tell that to the marines. When the speaker of the House defected to the APC last year did the Inspector-General of Police, Mr. Abba not declare his seat illegal and unconstitutional? Did the police chief not withdraw the police orderlies attached to the Speaker? Did the Police not attempt to prevent the speaker from presiding over the proceedings of the House? Yet when speakers and other legislators decamped from opposition parties to the ruling party their orderlies were not withdrawn by the Police.
In the same vein, other security agencies have not hidden their
partisan positions in the democratic process. If the satanic Boko Haram
sect is not defeated by the armed forces of the republics of Chad,
Cameroon and Niger in the next six weeks the security chiefs are likely
to ask for another postponement of the General Election on the ground
that the operations in the north east region have not been successfully
concluded. As such extension cannot be accommodated under the Electoral
Act and the Constitution the democratic forces in Nigeria should be
prepared for a long drawn out battle against the anti-democratic forces
that have resolved to hijack political power with the connivance of the
military cabal.
Falana SAN, a foremost human rights lawyer is a recipient of the Bernard Simmons Award of the International Bar Association.
0 Comments