In an article he titled “Operation Python Dance II In South-Eastern Nigeria Is Legal and Constitutional”, Mr Jiti Ogunye presented his view as though he was doing this on behalf of himself and others. He did not name these others because the article only bears his name, but he indicated throughout that he was speaking for more than himself. Or is this just his own formal way of addressing himself in the plural sense? Anyway, whatever his reason(s), I will, in addressing this, treat it as solely Mr Ogunye’s view until the contrary is stated.
Mr. Ogunye chose to address what he said are two legal questions. This is how he presented them:
“Does the president of the Federal Republic of Nigeria, acting alone as commander-in-chief of the Nigerian Armed Forces, or through the chief of defence staff or any of the chief of staff of the three arms of the Armed Forces, have the statutory and constitutional power to deploy the military to any part of Nigeria, to quell an insurrection or to maintain and secure public order and safety, without the authorisation of the National Assembly? Assuming Operation Python Dance II currently being conducted in South-East Nigeria was authorised by the president, is the operation legal and constitutional?”
According to him, he’s making this intervention because some people are mischievously stating the law. He said he’s “impelled to intervene because erroneous and misleading arguments are being passionately canvassed in the media (print and broadcast) and in the social media, declaring that the military operation is illegal and unconstitutional, and that it is specifically targeted at South-Easterners by Muhammadu Buhari” who he says some people, who again he did not name but quoted, have described as “an unrepentant militarist” and a “Hausa Fulani power hegemon and supremacist”. He further says these people have alleged that Buhari has “a deep seated hatred for the Igbos".
Honestly, I find Mr Ogunye’s claims almost Trumpian because up to the time I read him, I had not read anyone of substance in law or in the media stating the law mischievously as he claims and I have not read anyone making those comments he’s put in quotes over this matter. So, who is he responding to and who is he quoting? The more we search for those he’s claiming to engage, the more we are dead-ended.
Mr Ogunye himself has not helped steer us in the right direction. For instance, I first read his take on a Facebook thread initiated by my Oga, Hrm Babatunde Ogala and, as I read, I wondered if Mr Ogunye’s piece was a response to Mr Femi Falana’s position on the law. Mr Falana was writing at a time we were reading in the news that the Army had put Mr Nnamdi Kanu under house arrest. In addressing what he considered as the illegality of the action, he touched generally on the military deployment itself and declared that there is no legal basis for the President to authorize the Nigerian Armed Forces to take over police duties in the South-East. But when one Mr Olufemi Adegboyega Kolawole came to the thread to speculate that Mr Ogunye’s piece could be a response to Mr Falana in the ongoing legal crossfire, Mr Ogunye quickly came on the thread to state that his essay “is not and was not meant to be a response to or cross fire with Mr. Femi Falana, SAN”. He said, rather, he was referencing the arguments of “other distinguished colleagues” in the media on the subject, but, again, he did not name these distinguished colleagues or refer us to the things he was referencing or responding to in the media
Of course, all this is a little frustrating. Sure, I’m aware that people may have different views on the issues Mr Ogunye has chosen to address, but to claim those who do not agree with him are mischievously stating the law and to do so without specifically telling us who these persons are and what they have said is to set us on a bit of a wild goose chase. That’s unhelpful. Law in our jurisdiction is adversarial; whether in the courts or in any other public forum, you need to address your debating opponents directly. In other words, if you want a public debate, choose your opponents, name them, tell us what is wrong with what they have said and give us your own position. That’s how to have a proper debate. So, it is my hope that as this debate progresses, Mr Ogunye will come out to put names and faces to those he’s responding to, so we can be more informed.
Now, having said the above, I’d like to contribute to the substantive debate. First, I was initially impressed that Mr Ogunye clearly stated the two legal questions he wanted to confine himself to in the debate from the very beginning, but then he promptly lost his way thereafter. He spent the first ten paragraphs of his piece mostly discussing issues not related to the legal questions he had said he was confining himself to. I mean, he gave an expertly airbrushed account of the army’s “show of force” and claims of a “right of way” in Nnamdi Kanu’s village of Isiama Afara Ukwu in Abia state, he talked about the right of the army to conduct operations without hindrance and then he gave an account of his battle with people castigating him “for shedding crocodile tears” when he condemned the alleged violations of the human rights of the IPOB members in a video. He talked about an argument with people who say Kanu cannot be rearrested or should not be rearrested while on bail and then inveighed against a “desperate attempt” by some unnamed persons “to limit IPOB’s responsibility for its activities to the ongoing trial of Nnamdi Kanu, without accounting for what he has done since his release on bail” and so on. The irony is that he said all these were people lumping issues “to obfuscate the central matter, which is the question of the lawfulness or constitutionality of the military operation” when, in fact, he, regrettably, was the one at this point clearly obfuscating the matter.
But the worst part of his polemic in that first part of his piece was his attempt to redefine the meaning of insurrection so as to justify the military operation in the South-East. In all this, he kept speaking contradictorily about not wanting to “argue the facts on the basis of which an internal security operation by the military can validly and legitimately be ordered by a president”, while in the same breath he was proclaiming that “there is a factual basis for the President to exercise his powers to order Operation Python Dance”, even though the military operation at Nnamdi Kanu’s village happened before the commencement of Operation Python Dance and even though the Army presented the said Operation Python Dance as just a routine military exercise. Frankly, I consider that part of Mr Ogunye’s article a little diversionary, obscurantist and filled largely with straw man arguments. If you start a piece by stating what you want to address, go straight to it and don’t make any attempt at justifying other things that are not part of your focus.
Also, in addressing the substantive issues in his piece, I’d like to collapse the two legal questions Mr Ogunye has raised into one. I say this because I consider the first legal issue as the only relevant issue he has raised. What he considers as the second question, which is whether the military exercise currently being conducted in South-Eastern Nigeria is legal and constitutional is a passenger proposition because its premise is already subsumed in that first question about the President’s statutory and constitutional power to deploy the military. I mean, first, we have to assume that the President authorized the deployment because nothing in the news or in the conduct of the military has indicated this is not the case. In fact, one of the press releases by the Army informing the public about Operation Python Dance II stated that the President deployed the military under the powers conferred on him by section 218 of the Constitution. The legality of the deployment is fully tied to the answer to the question as to whether or not the President acted constitutionally in deploying the military. So, if the constitutionality of the deployment is established, the question of whether the operation is legal and constitutional is otiose.
However, the question of whether whatever the military does there after lawful deployment is legal or constitutional is another matter entirely as their conduct in the theatre of operation is governed by separate laws (nationally and internationally) and once they’re breached, their conduct, not their deployment, becomes unlawful. I’m saying it is obvious that if we focus on the one question of presidential deployment without recourse to the National Assembly, we would have effectively addressed every issue Mr Ogunye has raised.
Now, looking at Mr Ogunye’s first question, which is the only one I’ve said I intend to address for reasons I stated, I would say I have a problem with the phrase “without the authorisation of the National Assembly” because the exercise of the President’s power of deployment can happen in various forms that cannot be described as him being authorized by someone else or some other body, especially in the circumstances under consideration here. For instance, under section 217(2)(c), by the very wording of the law, the President and the National Assembly evidently share conjunctive powers and responsibilities with regard to the deployment of soldiers to suppress insurrection and act in aid of civil authorities to restore order when called upon to do so. While the President gives the actual order for deployment, directly or through the Chiefs of Staff, he can only do so “subject to such conditions as may be prescribed by an Act of the National Assembly”. In the case of section 305(2), he can only do so after a resolution of the National Assembly approving the Proclamation of a state of emergency.
Also, under section 17, Part I of the Third Schedule of the Constitution, the President shares conjunctive powers with the National Defence Council, which is empowered to advise him on “matters relating to the defence of the sovereignty and territorial integrity of Nigeria” and that can include matters relating to deployment of troops. In fact, section 5(5) of the Constitution further emphasizes this conjunctive powers between the President, the National Defence Council and the Senate when it states that notwithstanding the provisions of section 5(4), “the President, in consultation with the National Defence Council, may deploy members of the armed forces of the federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger; provided that the President shall within seven days of actual combat engagement seek the consent of the Senate, and the Senate shall thereafter give or refuse the said consent within fourteen days.” In other words, even though the President can for the purposes of section 217(2)(a) and (b) deploy troops on a limited combat duty outside Nigeria, he can only do so after consultation with the National Defence Council and for not more than 21 days before receiving the Senate’s approval. In fact, he cannot even deploy troops on a limited combat duty outside Nigeria “except with the prior approval of the Senate” as stipulated by section 5(4)(b) of the Constitution.
We can also say in a general sense that the executive powers of the President (including power to deploy troops) is exercised conjunctively with the National Assembly because section 5(1)(a) of the Constitution which vests the powers in the President also says such executive powers may be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation “subject … to the provisions of any law made by the National Assembly”. But section 5(4)(a) of the Constitution may actually present us with the only case we can say the President is actually authorized by the Nigerian people (through the National Assembly) to deploy troops via a declaration of a state of war between the Federation and another country. This is because the section says “the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session”. The idea of the National Assembly sanctioning such a declaration connotes the people giving authority to the President to so declare.
Therefore, where the Constitution gives authority to both arms of government over a matter with none authorized to act independently to achieve the purpose of the act or law, we say both have conjunctive powers. None of them is authorizing the other one; they just have separate duties regarding the same thing. So, from the foregoing, we can see clearly that at no point has the Constitution given the President or the National Assembly sole power over military deployment, whether for operations abroad or for internal security operations in Nigeria. The Constitution gives each of them powers in certain areas with both acting in their designated area to achieve the common purpose.
Okay, having made these initial clarifications, I would now like to address the matter proper. In my humble opinion, I do not think any serious person is questioning the general power of the President to deploy the military to any part of the country without recourse to the National Assembly in every case that he has to do so. There is a reason it is an executive presidency and why he holds the official position of Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria.
I am emphasizing the phrase “general power” because it is obvious that the President’s power to deploy is not an absolute power, as Mr Ogunye would like us to believe. So, to be clear, we are questioning the power of the President under the law in this specific case of the deployment to the South-East, not in the general sense of the deployment of the military for Operation Python Dance II as stated by the military when announcing this mission, but in the specific case of the operation metamorphosing into one supposedly aimed at quelling insurrection in line with section 217(2)(c), according to the claims being made by Mr Ogunye. I mean, Mr Ogunye’s question is basically this: Does the President have the statutory and constitutional power to deploy the military under section 217(2)(c) of the Constitution without recourse to the National Assembly? So, we are questioning the wisdom of deploying the military to Igboland when there is evidently no insurrection or a breakdown of law and order of the nature Mr. Ogunye and co are claiming.
At this juncture, let us talk a little bit about insurrection and our national history with it. This might help some of us objectively compare and contrast what we’ve always known as insurrection with what happened in the South-East being described by Mr Ogunye as insurrection with a view to deciding for ourselves whether the deployment of soldiers to the South-East is necessary. More crucially, a history of insurrection under democratic rules in Nigeria will give us an idea how democratic authorities have historically handled it in Nigeria, so we can see if President Buhari is following precedents.
Fact is an insurrection is a violent uprising that happens against or outside the national constitutional order. The first act of an insurrection is that it formally and violently rejects the laws and the government of the jurisdiction of the insurrection. Examples of insurrections in Nigeria are the 1964 Tiv riots, the Isaac Adaka Boro-led 12-day secessionist attempt in 1966 with the declaration of the Niger Delta Republic and the establishment of the armed Niger Delta Volunteer Force on the 23rd of February 1966, the 30th of May 1967 Biafran act of secession that ultimately resulted in the Nigerian Civil War, the Maitatsine riots of 1972, 1980, 1982 and 1984, the Niger-Delta militancy, the Boko Haram insurgency and the various military coups we have had in the country, except the successful ones. Once a coup succeeds, it becomes a revolution because it replaces the existing legal order.
Of all the above, only the Tiv riots of 1964 happened during the period of democratic rule in the First Republic. The Maitatsine riots of 1980 and 1982 happened in the Second Republic, while the Niger-Delta militancy and the Boko Haram insurgency are happening now during this Fourth Republic. As I implied earlier, each of these offers us an opportunity of seeing how the army is deployed under a democracy. We will see that in each case where the authorities have had to deploy soldiers to address an insurrection under a democratic dispensation, the police were first deployed and only after they’ve been overwhelmed before the armed forces were called in.
First, in the case of the Tiv riots, despite the very toxic political atmosphere surrounding the disturbances, Prime Minister Abubakar Tafawa Balewa’s first instincts weren’t to use the army. The riots were huge, but in the beginning, the government acted more to prevent a breakdown of law and order, rather than respond to actual breakdown of law and order. The police were fully in charge. Though the riots had been building up since 1960, it was in 1964 it became a full-blown insurrection when four policemen were killed following the murder of the clan head of Mbalagh in the Tiv Division. The police tried to beat back rioters, but the resistance was stiff and, in time, the flagging confidence of the police meant that the outgoing Inspector-General of Police, Mr John Hodge had to visit police units in the Tiv Division in February 1964 to help raise their morale. In July 1964, four police riot units were deployed to join those already on the ground and police emergency operations were directed by an Assistant Commissioner of Police, Baba Jimeta.
But the uprising was popular with more than fifty thousand rioters involved. Their ranks were bolstered by the presence of Tiv ex-servicemen who just returned from the UN mission in Congo. Their military expertise became evident in the operations as they camouflaged effectively and used inventive tactics to lure the police into mistakes. For instance the rioters would use what they called Adoki (scarecrows) as baits. They would dress several of them up, wear them hats and helmets and station them in strategic places in large numbers. The police would shoot at these thinking them humans. While the police were expending their arms and ammunitions on these, the rioters would be collapsing the scarecrows and the police would think these were casualties. Upon exhausting their ammunitions, but confident they’d overran the rioters, they would move forward to inspect the damage only to be surprised by the rioters lying in wait. The police lost several men in situations like this while it was a great morale booster for the rioters.
Soon it became clear that the police could not cope as the violence escalated. These were no longer mere riots and civil disturbances, but a full-blown guerrilla war by Tiv militias against the Northern Regional Government. It was at that point that the Prime Minister, Sir Abubakar Tafawa Balewa on November 18, 1964 invoked his powers under the Constitution to call in the Army (Nigerian Constitution Order in Council Supplement to Official Gazette Extraordinary, No. 61, Vol. 47, 30 September, 1960). It was the equivalence of section 217(2)(c). A whole Battalion of the Nigerian Army and the Recce Squadron were deployed there. The police formally admitted their failure and were withdrawn into reserve.
In the case of the Maitatsine riots of 1980 in Kano, at first these were politicized by the National Party of Nigeria (NPN) central government in Lagos because they thought these were going to clip the wings of the People’s Redemption Party (PRP) governor of the state, Abubakar Rimi. Rimi didn’t have a great relationship with the central government, he had fallen out with the Emir of Kano, Ado Bayero and also the leader of his party, Mallam Aminu Kano. But everybody knew the leader of the Maitatsine sect, Mohammed Marwa was an old customer who had been a security threat for more than two decades before then. Marwa and his followers took on the police, but when the Kano State Commissioner of Police asked for reinforcement from Lagos to deal with the insurgency, Sunday Adewusi, the Inspector-General of Police and a known NPN lackey refused to provide men. He was clearly acting the script of his NPN political overlords in their mission to teach Governor Rimi a lesson. Even the Nigerian Security Organisation (NSO) operatives attached to Kano and in the headquarters in Lagos refused to share intelligence with Rimi and the Kano State government.
After calling on his followers nationwide to come and defend his base in Yan Awaki quarters in Kano where he was involved in seizing private land and constructing illegal structures, something that had already put him at loggerheads with the state government, Marwa soon began a takeover bid of the Fagge Market and the Kano Central Mosque with the aim of installing his followers as Imams. To begin to put this plan in place, on the 8th of December 1980, he organized a campaign at the Shahuci prayer ground near the Central Mosque and the Emir’s Palace. The police were forced to confront him. In the ensuing melee, four police officers were killed, thirteen police vehicles burned and several police weapons seized. The police were forced into a retreat. This emboldened the Maitatsine followers who went on rampage in the city for the next 20 days, leaving death and destruction in their wake. At this point, due to national and international pressure, the Shehu Shagari government at the centre had to act. On the 28th of December 1980, the army was called in and under Colonel Yohanna Kure they were able to bring the situation under control, killing several sect members, destroying their abodes in Yan Awaki, with huge collateral damage as well.
In October 1982, the nation witnessed some more Maitatsine-inspired riots in Bulumkutu and Maiduguri in Borno State and in Rigasa in Kaduna State. Followers of Maitatsine who had fled the Kano clampdown instigated these riots. They set up communes around some of the towns they settled, encroaching on other people’s property and building against local planning laws. They frequently clashed with mainstream Muslims and Christians whom they harassed in their attempt to forcibly convert them to their beliefs. After several reports to the police, the authorities ordered a raid of their abode in Bulumkutu on the outskirts of Maiduguri. But they soon overwhelmed the police and the Shagari government had to call in the military. The task was given to the Major-General Muhammadu Buhari-led 3rd Armoured Division, Jos. The resulting skirmishes, which spread to other parts of the North where other fanatics went on rampage, saw the death of about three thousand persons. The fanatics set fire to their quarters in Bulumkutu and fled to other parts of the North and also into Chad Republic.
Though what most people remember most about the origins of the Boko Haram insurgency were the Thursday, 30th of July, 2009 extrajudicial killings of their leader, Mohammed Yusuf and some of their members, this was after the sect had began a violent campaign against the authorities with attacks on police stations and killing of policemen all over the North. This came to a head with the Sunday, 26th of July, 2009 attack on a police station in Bauchi which triggered a wave of militant violence across three other states in the North. This was why the Umaru Yar’Adua government called in the Army.
In the case of the Niger Delta militancy, it was more a guerrilla warfare. There were many police actions before soldiers were called in, but casualties weren’t many because it mostly consisted of sabotage of oil installations after warnings had usually been given in advance. But because of the grave effect on the national economy, there was soon a negotiated settlement that led to the Amnesty programme. Though we still witness some of these sabotage actions now and again and we do hear militant sabre-rattling now and again (as we are hearing now), the peace is largely holding.
So, the Tiv riots, the Maitatsine riots, the Boko Haram insurgency and the Niger-Delta militancy have presented us the opportunities of seeing how civilian authorities deploy the military in a democracy in the situation of an insurrection. The most important thing to note for our purpose is that in each case, until it becomes an armed conflict initiated by the insurrectionists and until it is clear that the police are unable to handle the insurrection before the military is deployed. We can also extrapolate from the way our laws treat insurrection the very nature of it. For instance, the Criminal Code has no offence known as insurrection, but acts of insurrection are treated as acts of levying war against the state under section 37. In other words, an act of insurrection is a treasonable offence.
However, what we have in this IPOB case are some members of the Igbo community in the South-East under the banner of IPOB agitating for a referendum on the question of secession. We cannot by any stretch of the imagination say such civil agitation is insurrection. Or do members of IPOB not have a right to free speech and freedom of assembly, even though a lot of us are robustly against their message and some of their antics? Truth is no matter our personal views about Nnamdi Kanu’s comments and personal conduct, an agitation for self-determination based on the laws of the land, even if opposed to the government, is not an insurrection, because citizens are allowed to be opposed to the government in exercise of their right to self-determination, right to free speech, freedom to hold opinion and freedom of assembly.
In fact, there is a parallel with what is happening in America right now. President Donald Trump is up in arms against NFL players who in his opinion wouldn’t respect the US national anthem. He insults them and they insult him back, locking arms and defiantly kneeling during the anthem. In one symbolic day, hundreds of players, club owners and staff in every NFL ground defied him. Some NBA players have joined the fray, LeBron James called President Trump a “bum”, Stephen Curry has wondered how a leader would behave like Trump and so on. In fact, LeBron James and the athletes now go around in a black T-shirt saying “TRUMP U SON OF A B*TCH!” installed below the picture of a huge middle finger stiffly pointing up to complete the message. But Trump isn’t sending in troops to close down NFL grounds or arrest players and staff, even when he calls on people to boycott them. He’s not sending soldiers to pick up LeBron James, Stephen Curry and the other defiant athletes and he isn’t keeping quiet either. He’s giving as well as he gets because, irrespective of the racial undercurrents in the whole thing, American democracy is alive and well. The right to free speech protects presidents and ordinary citizens alike.
Also in Iraqi Kurdistan, the Kurds have organized a referendum for independence opposed by the Iraqi state. Most world powers had appealed to them not to go ahead with it, the Iraqi Supreme Court ruled against it, but they have gone ahead defiantly. The Iraqi government isn’t sending in soldiers to Kurdistan and no one is running around accusing the other of not being patriots. In a democracy, dissidents too are patriots. Of course, there would always be real and pseudo-patriots calling for a strong-arm response to calls for secession, but the test of a true democracy is the ability of its elected and appointed officials to resist the temptation of replacing the law with their personal whims and prejudices because once we go down that road, we would actually be killing democracy and our nation.
Really, there is nothing abnormal with the IPOB campaign for secession, despite their leader and some IPOB activists intermittently exhibiting symptoms of verbal diarrhea. As far as we all have the public space to debate our respective positions, we don’t need the army to intervene. IPOB and Nnamdi Kanu were meeting freely with Governors, Igbo community leaders and members of the states’ leadership in the South-East, issuing joint statements and assuring citizens they were all working towards a common purpose. The Governors and IPOB had scheduled a meeting for mid-September before the military deployment scuppered the whole thing. In fact, if indeed there was an insurrection in the South-East, the United Nations Development Programme (UNDP) would not have declared the South-East as the safest place to live in Nigeria in its last year report on the country. IPOB is not a secret society and their rallies are open to the pubic. There is nothing in the contemplation of the law or by the ordinary meaning of the word that would consider whatever was happening in the South-East before the military deployment as insurrection.
As a matter of fact, we know that the President and the military authorities at no time claimed that they were deploying the military to quell an insurrection. Every press release made by the military before and during the operation made no mention of insurrection nor did any of them state they were involved in dealing with anything of the sort. As the name implies, Operation Python Dance II is presented to Nigerians as a continuation of Operation Python Dance I. I mean, not that at the time of the first one anyone expected the Army to return the second year, but now the Army Chief of Staff Lieutenant-General Tukur Buratai has indicated that the Operation will now be conducted annually. That means we are talking routine yearly operations, not an operation against insurrection, except we now want to claim that insurrections in the South-East are permanent yearly occurrences that the Armed Forces must be attending to every year on the same date. Now how reasonable is that?
The point is at the time they were initiating the first Operation Python Dance, they simply called it a military exercise and spent a lot of time on PR, reassuring citizens of the South-East that they were there to help the people have a more secure yuletide as they were there to help generally with security. They said they would mostly be at checkpoints, but that people need not worry. In the end, it was acclaimed as a successful exercise, not one person was beaten, tortured or arrested. The only complaint people had was that the soldiers were extorting money from transporters and other citizens at checkpoints.
When they launched Operation Python II, they basically said they were going to be doing the same thing they did during the first one. It’s not until Friday, 22nd of September that the 82 Division of the Nigerian Army suddenly released a statement claiming to be checkmating the “violent activities of the banned Indigenious (sic) People of Biafra”. Still all they could say to support their claim is: “The usual violent activities of the outlawed Biafra “National Guards” (manning check points and extorting money from traders and motorists) have now been checkmated”. Again, even though we are talking after the fact of deployment, it still does not pass the test of insurrection.
Mr. Ogunye listed and discussed the sections of the Constitution and the laws he said are relevant in resolving the question of the legality and constitutionality of Operation Python Dance II. His submission is that “a combined reading and interpretation of the provisions of Section 217(2) (c); and Section 218 (1, 2 &3) of the Constitution, and Section 8 (1, 2 &3) of the Armed Forces Act, Cap. A20, LFN, 2004 show clearly that the President of the Federal Republic of Nigeria is vested with the powers to authorize the conduct of military operations, including Operation Python Dance II without recourse to the National Assembly”. Mr Ogunye believes that this is the power the President exercises “as a Commander in Chief of the Armed Forces, which, as the Constitution currently stands, he does not share with the National Assembly, another arm of government”.
Clearly, we can see that Mr Ogunye’s interpretation of section 217(2)(c) of the Constitution is that it grants the President absolute power to deploy the military for the purpose of suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so” despite the fact that the provision states plainly that the President’s power to deploy the military for this specific purpose is “subject to such conditions as may be prescribed by an Act of the National Assembly”. His support for this interpretation he said is based on reading section 217(2)(c) in combination with section 218(1) which states that the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation “shall include power to determine the operational use of the armed forces of the Federation”. Again, he ignores the provision of section 218(4)(a) which states that the National Assembly shall have power to make laws for the regulation of the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation. As for Section 8(3) of the Armed Forces Act, it merely explains that "operational use of the Armed Forces" includes the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order.
Now, I did say the worst part of Mr Ogunye’s polemic in that first part of his piece was his attempt to redefine the meaning of insurrection so as to justify the military operation in the South-East, even though the President and the Armed Forces have not said they are there to quell an insurrection. This argument is crucial for him, even though he somewhat tried to straddle both sides as he went along because he wants to find an extraordinary reason for the military being there. I mean, he started off strongly claiming there was an insurrection in the South-East that triggered the President into acting on the basis of section 217(2)(c) of the Constitution. He made out that the only question was not whether there was an insurrection, but whether the President has any parliamentary check on his powers to deploy the military at that point. He assures us that “a calm and sober reading of the provision of Section 217(2)(c) does not yield a meaning that unless and until the National Assembly makes a law setting out or prescribing the conditions for the exercise of the power of the President to call on the military to suppress an insurrection in aid of civil authorities, the President cannot exercise that power”.
Then, in the midst of all that, he came up with this:
“Now, more relevant to our question for determination in this essay, Section 218 (1) of the Constitution provides that “the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation”.
“Under Section 218 (1) of the Constitution, the President, as Commander-in Chief, determines the operational use of the Armed Forces of the Federation. The same power of determining the operational use of the Armed Forces is vested in the President by Section 8(1) of the Armed Forces Act, which in Section 8(3) [the definition subsection] defines “operational use of the Armed Forces” to “include the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order”.
“Thus, even if there is no insurrection, if there is a real and present threat to public safety and order, and there is a need to maintain and secure public safety and order, the President is statutorily empowered to operationally use the Armed Forces to keep or enforce the peace”.
This is tongue-tying obfuscation! Who is arguing that the President’s power to determine the operational use of the Armed Forces of the Federation is in question? I mean, Mr Ogunye told us that the President exercised his operational power over the military under section 217(2)(c) of the Constitution because there is an insurrection. Having led us mid-sea, he then turned round to say, actually, even if there is no insurrection, the President is still statutorily empowered to operationally use the Armed Forces to keep or enforce the peace, as far as there is a need to maintain and secure public safety and order. And he now wants us to believe that “more relevant to our question for determination” in his essay is the President’s power as the Commander-in-Chief of the Armed Forces of the Federation to determine the operational use of the armed forces of the Federation”. How? Who is debating the President’s power to determine the operational use of the armed forces of the Federation? And, by the way, is the power of the President to determine the operational use of the Armed Forces independent of section 217, which clearly indicates the circumstances and stipulates the conditions under which the Armed Forces can be deployed? Does the fact that the Constitution empowers the National Assembly to prescribe conditions for the exercise of the power of the President to call on the military to suppress an insurrection and aid civil authorities stop the President from exercising his operational power over the Army?
It seems to me that Mr Ogunye tried to ‘insure’ his argument when he declared that “…even if there is no insurrection, if there is a real and present threat to public safety and order, and there is a need to maintain and secure public safety and order, the President is statutorily empowered to operationally use the Armed Forces to keep or enforce the peace”. So, really, can the President deploy the army even if there’s no insurrection? Sure, but only if such a situation is covered under 217(2)(c), that is if the civil authorities in the area call on the President to deploy soldiers to act “in aid of civil authorities to restore order”. I mean, we operate a federal system and there is a reason the Governor of a state is the Chief Security Officer of that state, there is a reason every state has its Police Command under a Commissioner of Police. In exercising his power to deploy the troops under section 217(2)(c), the Constitution is contemplating situations where the civil authorities and the police in the state must have failed to contain the trouble in question and are therefore compelled to call upon the President to deploy soldiers “to restore order”. This can be done under the provisions of section 305(4) of the Constitution, that is when the Governor of a state and the state legislature request the President to issue a Proclamation of a state of emergency when any of the events specified under section 305(3)(c), (d) and (e) happens or it can be done directly under the provisions of section 217(2)(c) once it is obvious that the civil authorities cannot cope and once they ask for the help directly without a declaration of a state of emergency. In any case, deploying soldiers in cases of civil disturbances is certainly not the first line of action, no matter what the President thinks.
And that brings me to the question of why Mr. Ogunye did not deem it fit to explain the role of the police in all this. I mean, you would expect that if he’s calling for the outright deployment of soldiers or is justifying same, he should be able to tell us why the police are not the appropriate authorities to call in at this stage. Why does he think the use of the military is okay in any case there is the need to secure public safety and order? What law supports that view?
It is instructive that at the height of the menace of the Fulani herdsmen in June last year, and after the uproar that followed the Global Terrorism Index rating them the fourth deadliest terrorist group behind Boko Haram, ISIS and Al-Shabab, the Minister of Interior, Lieutenant-General Abdulrahman Dambazau (Ret) came on air to educate us about this matter. This was at a time the Middle-Belt, Southern Kaduna and the entire South were in the grip of fear of these marauders. Asked why the Armed Forces have not been called in to deal with these people, Dambazau eloquently responded:
“We must protect the country which is the main function of the police. The Civil Defence are there to complement them too. This is a non-military issue that borders on law and order. It is not every security issue that you call in the military. It is the responsibility of the police to maintain peace. I believe that if we put the police in proper position in terms of discharging its functions, then there would be no need for military option. The police are equal to the task. If you have to deploy the army, then you are going above board (sic). In any case, I do not even have the power to deploy the military for anything. It is only when the situation gets out of hand that you invite the military.”
Of course, despite obvious government hypocrisy and double standard in dealing with security issues in the country, Dambazau is right in his analysis of the role of the police as the appropriate agency to deal with issues of this nature, rather than the Armed Forces. Or what exactly happened in the South East that we all missed that necessitated the Army coming in uninvited, bypassing the Abia State Police Command and marching straight to Nnamdi Kanu’s village to “show force” and show off their armoury? Why are we now shrieking at the great scandal that is the stone-throwing and stick-wielding rabble that confronted the jejely-going-on-their-own armed-to-the-teeth members of the Nigerian Army they feared were coming for their leader? Where is the sense in a President who will not deploy the Army against the murderous Fulani herdsmen sending soldiers into Igboland to quell a non-existent insurrection?
The basic and most important point to make in this whole debate is that if there are elements of IPOB acting criminally, and I suspect there are, the Constitution under section 215(3) has given the police the exclusive right to maintain law and order and secure public safety and public order. Section 4 of the Police Act, talking about the general duties of the police plainly states: “The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act”. It is precisely for situations that call for the police to perform military duties that led to the creation of the Mobile Police arm of the Force.
Indeed, the courts in interpreting our laws have firmly stated that the military cannot be deployed to take over the duties of the police. Without a doubt, this is settled law. In the Court of Appeal case of Yusuf v Obasanjo (2005) 18 NWLR (PT 956) 96, the Court took time to explain what should be the overriding consideration in enforcing security in a democracy. It was ruling at a time General Olusegun Obasanjo had reduced our democracy to a “do-or-die” affair. According to the Court: “It is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious step or steps should be taken to civilianize the polity to ensure the survival and sustenance of democracy.” In Buhari v Obasanjo  2 NWLR (Pt. 910) 24, at 520 – 521, Nsofor, JCA, was scathing in his condemnation of President Olusegun Obasanjo’s deployment of soldiers to Akwa Ibom, Benue, Enugu and Ebonyi States supposedly under powers granted him by section 217(2)(c) of the Constitution. He declared the deployment unconstitutional based on the fact that there was no state of war in any of those states and no state of emergency declared in them before the deployment of soldiers.
These two rulings are actually very important in understanding the issues in this debate because the sentiments expressed in the rulings are exactly the things Mr Ogunye is arguing against in his piece. Indeed, I find it curious that in a number of times Mr Ogunye has intervened in a public debate over the rights of citizens against the government, his instincts have been to interpret the law in a way to undercut the rights of citizens, even when everything shows that such an interpretation cannot be justified in a democratic society. This was exactly what happened when he intervened over the ill-advised ‘deportation’ of fellow Nigerians from Lagos by the Raji Fashola government. Again, we are witnessing it with this intervention and it’s now looking like a pattern that anytime we are worried about the egregious exercise of state power, Mr Ogunye will come with the excuse that it is the letter of the law. I mean, forget that the letter of the law does not even support him, what of the spirit of the law? Can you interpret any law in a democracy without applying the spirit of the law?
The funny thing is I remember watching a television programme where I saw Mr Ogunye condemn President Goodluck Jonathan’s deployment of the military in the Ekiti and Osun elections in 2014. I cannot now remember if he quoted section 217(2)(c) to support his position, but I heard him say that the military deployment does not augur well for democracy. I suppose he would say in his defence that the circumstances here are different, but the fact remains that he still has not been able to discharge the responsibility of justifying the deployment of soldiers in the South-East when there clearly is no insurrection or any other situation envisaged by section 217(2)(c) of the Constitution and where such a deployment is a clear diminution of our democracy.
Certainly, the philosophical underpinnings of Mr Ogunye’s thesis are more militaristic than democratic and that itself is a reason to question them. In fact, there is a sense that Mr Ogunye’s piece is a justification for capricious exercise of power because his whole thesis is built on the notion that the President exercises absolute power with regard to the deployment of soldiers for any reason he deems fit simply because he has the power to determine the operational use of the Armed Forces. He claims to recognize the “possibility that these wide powers granted the President by the Constitution and the Armed Forces Act can be abused or misused”, yet he finds nothing in the Constitution or in the practice of our laws to negate such a possibility. Instead, he told us that there is nothing we can do with the law as it is.
“It is our view that the fear of or phobia for the abuse or misuse of constitutional or statutory power, granted to the President by the law and the Constitution cannot, and must not be a basis to deny that the power was ever donated or granted. One can express deep or minor reservation about the exercise and implications of that power, and one can campaign for its legislative curtailment, or embark on its judicial interpretation. That is good. But it will amount to sheer legal sophistry to deny the existence of that power”.
In my view, such a depressing prognosis shouldn’t be coming from a public interest lawyer. That is why, even a layman without any knowledge of law would find Mr Ogunye's cold conclusions unsettling. I mean, how can anyone propose to us that in a democracy the President’s power over the Armed Forces is so absolute that we cannot do anything when he abuses it? Is our democracy that fragile? Did we fight against military rule and lose great citizens in doing so only to donate that democracy back to a dictator and his military? Did we fight for democracy, going through that hellish struggle, only to donate our rights and freedoms to an absolute ruler masquerading as our democratic President? Are the framers of our Constitution so clueless as to make us prisoners of one elected man?
Of course, the Constitution does not create a political system that is a slave to the whims and caprices of one man. It is a document that empowers institutions of state against the egregious exercise of power. That is the great value of a Constitution in a democracy. It is not in the nature of a constitutional democracy of any kind to create an executive or a presidency that is not answerable to anyone in the exercise of any power conferred on the person or the office by law. The presidential system we practice, warts and all, is governed by a clear separation of powers between the branches of government. This is in consonance with the democratic principle of checks and balances. Both the principles of separation of powers and checks and balances ensure that no person or arm of government is given wide discretionary powers that undermine democratic accountability in any area of governance, whether in the deployment of soldiers or in the signing of a cheque. In this case, the National Assembly and the judiciary are checks on the President’s power of military deployment because they know the power of the gun. No democracy turns the gun against itself. The Constitution ensures that where powers are given by the Constitution, there will be provisions within the same Constitution and the law to operatively check that power. Nobody is allowed to exercise extraconstitutional power against the people who are the sovereigns of their democracy.
At this point, it would be proper to look more closely at section 217 of the Constitution, so we can properly interpret the letter and the spirit of the law to understand the intendment of the Constitution with regard to this matter of military deployment. Allow me to quote the relevant parts of section 217 for our purpose:
217. (1) There shall be an armed forces for the Federation which shall consist of an army, a navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of - defending Nigeria from external aggression;
(b) maintaining its territorial integrity and securing its borders from violation on land, sea, or air;
(c) suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and
(d) performance of such other functions as may be prescribed by an Act of the National Assembly.
So, what do we see here? Obviously, this section is the most important bit of legislation we need to properly consider in order to fully understand how the whole scheme works. The mistake Mr Ogunye is making in his interpretation of the powers of the President with regard to the deployment of the military arises more from his inability to understand what this section is about and how it is meant to work with other relevant sections in a democracy in order to achieve the intendment of the Constitution. It’s obvious from even Mr Ogunye’s own words that he, deliberately or inadvertently, still applies a militaristic outlook in his interpretation of the law under a democracy.
What this section establishes is that deployment of the military by the President can result from two situations. It can be either in response to external aggression or in response to internal civil disturbances of the nature mentioned in section 217(2)(c). As we have seen from my earlier discussion of the constitutional provisions governing deployment of Nigerian soldiers to address external aggression or for services outside the country and as we can see from the wording of section 217(2)(c), this is not a matter of discretion for either the President or the National Assembly because the whole purpose of the elaborate provisions governing the deployment is to ensure that no one is in doubt as to their duty in every situation. Of course, we do know that even if there is discretion, the courts can come in to declare the egregious exercise of a discretionary power illegal and unconstitutional, but the point is this case does not have to come to that because the law is very clear in this regard, despite Mr Ogunye’s claim to the contrary.
We can see that apart from the general powers of the National Assembly to pass laws (for instance, the Armed Forces Act and so on) under section 217(1), section 217(2)(a), section 217(2)(b) and section 217(2)(d) deal with the functions of the Armed Forces with regard to defending Nigeria against external aggression, maintaining our territorial integrity and defending our borders, including other functions as may be prescribed by an Act of the National Assembly. Basically both functions under sections 217(2)(a) and 217(2)(b) relate to our Armed Forces fighting off any country or external enemy that tries to invade us and maintaining and securing our national borders. In both these functions, the Army is not expected to be dealing with Nigerian citizens but external enemies of Nigeria.
But then, look at the section 217(2)(c) function. What is the difference? Here, the Armed Forces are dealing with Nigerian citizens in an unusual or extraordinary situation. The Constitution knows how delicate this is because the Constitution which has established the power of the sovereign people of Nigeria over its Armed Forces by stating in section 217(2) that they are the people (the Federation) who “equip and maintain the armed forces” cannot subject them to the same military that is supposed to serve them, certainly not in a democracy. The Constitution holds the right to life of every Nigerian citizen dearly because the drafters understood that one of the conditions under which a person shall not be regarded as having been unlawfully deprived of his life in contravention of section 33 of the Constitution is if such a person “dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary for the purpose of suppressing a riot, insurrection or mutiny”. So, if a citizen’s life can be taken under such circumstances where even only “such force as is reasonably necessary” is applied, then reason dictates that there must be good reasons to make any such deployment for that purpose.
The Constitution knows that there would be circumstances the government might have to use the Army to do a job amongst civilians. The Constitution knows that you do not use your Armed Forces against your citizens, except in extreme circumstances mentioned there under section 217(2)(c) – that is (1) in suppressing insurrection and (2) acting in aid of civil authorities to restore order when called upon to do so by the President. Now, what else do we see there? That the power of the President to use the Army for a section 217(2)(c) function is subject to such conditions as may be prescribed by an Act of the National Assembly. The reason is simple. The Constitution does not aim to give any official, whether President or not, a blanket power over life and death of citizens under any circumstance without any restraint whatsoever. No democracy gives the President such powers.
Mr Ogunye gave two reasons for ignoring the stated power of the National Assembly over the exercise of the President’s power to deploy the military in the circumstances stated by law as I have indicated above. His first reason is that since 1999 or the return to democratic rule, “the National Assembly has not passed any new legislation prescribing the conditions for the exercise of the powers of the President to order the military or the Armed Forces to suppress an insurrection”. His second reason is that the Armed Forces Act “(which originally was promulgated as an Armed Forces Decree in 1993 by the Federal Military Government, and which is now adopted under the Constitution as a received or an inherited Act of the National Assembly) has no conditions prescribed therein, limiting or circumscribing or curtailing the exercise of power of the President to call out troops to suppress an insurrection”. In other words, without any such laws or prescribed conditions by the National Assembly limiting him, the President is legally free to act as the Head of State or President under a military regime would have acted since the law is simply a received or an inherited Act of the National Assembly. According to him: “There has been no amendment of that Act since 1999, when civil rule returned to Nigeria. In the absence of such a legislative intervention it is unhelpful or futile to engage in a debate as to whether, factually, an insurrection has arisen to justify the call on the military to suppress same”.
Now, let’s ignore for a moment Mr Ogunye’s militaristic interpretation of an Act of the National Assembly, he is right that since 1999 the National Assembly has not passed any new legislation prescribing the conditions for the exercise of the powers of the President to order the military or the Armed Forces to suppress an insurrection. But telling us that the Armed Forces Act (which originally was promulgated as an Armed Forces Decree in 1993 by the Federal Military Government and which is now adopted under the Constitution as a received or an inherited Act of the National Assembly) “has no conditions prescribed therein, limiting or circumscribing or curtailing the exercise of power of the President to call out troops to suppress an insurrection” reveals precisely the mischief that the Constitution is trying to address by the provisions of sections 217(2)(c) AND 305 regarding the declaration or Proclamation of a state of emergency.
What do I mean? We recall that Mr Ogunye stated that in resolving the question of the legality and constitutionality of Operation Python Dance II, it was important that we consider section 305 of the Constitution amongst others. Section 305 governs the declaration or Proclamation of a state of emergency and Mr Ogunye took the pains to quote the whole section and then concluded thus:
“Under Section 305, the provisions that govern the declaration or proclamation of a state of emergency, as it affects a part of the Federation or any of the States in the Federation, the President cannot act alone, without the concurrence of the National Assembly, or without a request from a state governor, backed by a resolution of a state house of assembly. The situation warranting a proclamation of a state of emergency are set out in Section 305 (3)( a-g) of the Constitution. It is our humble but very firm view that a deployment of the Armed Forces under Section 305 of the Constitution, as part and parcel of a proclamation of a state of emergency, is separate and different from a deployment of troops under Section 217 (2) (c) of the Constitution to suppress an insurrection, and the operational use of the Armed Forces under Section 218 (1) of the Constitution, and Section 8 (1) of the Armed Forces Act to “maintain and secure law and order and public safety”. Under Section 305 of the Constitution, the Armed Forces may not be deployed without a proclamation of a state of emergency and the input of the National Assembly. Under Section 217 (2) (c ) , Section 218 (1) of the Constitution, and Section 8(1) of the Armed Forces Act, the Armed Forces can be deployed for internal security operations in the country without recourse to the National Assembly”.
I find it curious that Mr Ogunye stated all this detail about section 305 only to declare it as “separate and different from a deployment of troops under Section 217 (2) (c) of the Constitution” (as it concerns the use of the Armed Forces internally to deal with insurrection and act in aid of civil authorities), but that is where he missed it because section 217(2)(c) must be read subject to section 305 which spells out the circumstances that would warrant the deployment of the Armed Forces for internal security operations and how to use them in such extraordinary circumstances to address the problems raised in section 217(2)(c). And even though section 218(1) says the powers of the President as the Commander-in-Chief of the Armed Forces of the Federation “shall include power to determine the operational use of the Armed Forces of the Federation”, section 218(4)(a) says the National Assembly shall have power to make laws for the regulation of the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation. This clearly indicates that the Constitution has not granted the President absolute power with regard to powers exercisable under section 218(1), including power to determine the operational use of the Armed Forces of the Federation to the extent that such power can be regulated by laws made by the National Assembly for that purpose. The combined effect of sections 217, 218 and 305 is that the military is not expected to be performing law and order functions unless under the conditions of a declared state of emergency.
Considered properly, we can see that section 305 of the Constitution dealing with a declaration or Proclamation of a state of emergency is actually a check on the presidential power of deployment. For instance, a look at section 217(2) will show that the circumstances under which the President can deploy troops based on conditions set by the National Assembly are essentially a duplicate of the conditions under which the President can issue a Proclamation of a state of emergency in conflict situations based on the approval of the National Assembly according to the processes set out in section 305. The differences in both sections are minor, but necessary. For instance, insurrection is not mentioned directly as a condition for a Proclamation of a state of emergency in 305, but it is implied. This is because an insurrection can lead to any of the conditions mentioned in section 305(3)(a)-(g), but it is not all kinds of insurrection that will warrant the declaration of a state of emergency, which is why it is mentioned separately under section 217(2)(c). For instance, if two village hunters pick up their Dane guns, kidnap the Local Government Chairman and kill his police orderly, run into the bush and begin to make certain political demands on the authorities, such would qualify as insurrection. But it will not warrant a declaration of a state of emergency or even a deployment of the military. It is more likely that the police will be able to take care of that, but where they are unable to, the President, upon the invitation of local authorities, can deploy soldiers without having to declare a state of emergency, especially if the hunters’ activities do not seriously disrupt the community.
Evidently, the constitutional provisions of section 305 regarding the Proclamation of a state of emergency and those under section 217(2)(c) are deliberately included to check the erstwhile unbridled power exercised by the military President or Head of State under the old 1993 Decree as it transforms to an Act of the National Assembly. The Constitution understands that it is only in the circumstances envisaged under sections 217(2)(c) and 305(3)(a)-(g) that the military can be called upon because in every other situation the police powers under section 215 of the Constitution and the Police Act will do. The Constitution knows that everyday law and order issue is for police to handle, but if it gets to a situation that the police cannot handle it in circumstances envisaged under section 217(2)(c) and 305(3)(a)-(g), then a declaration of a state of emergency will take care of the issue because its very nature is that it’s an emergency legislation that can quickly give power and authority to the Army and others needed to bring order to the situation. Where a state of emergency declaration isn’t necessary but military deployment is needed under section 217(2)(c), the National Assembly has no problem allowing the President to exercise his power limitedly or conditionally, even if any conditions are yet to be stated. This is because where in the judgment of the National Assembly he exercises that power wrongly, the law allows the National Assembly to prescribe conditions under which the President will exercise this power of deployment through an Act of the National Assembly, even where he has already ordered the deployment.
There is a reason the process of a Proclamation of a state of emergency is not a cakewalk for the President. The Constitution virtually requires that the National Assembly and the President be on the same page on the matter based on the consideration of the facts. That is why in Williams v Majekodunmi (1962), the then Federal Supreme Court held that it is the legislature that decides whether the set of facts justify the declaration of a state of emergency. So, if the National Assembly is not convinced that the President needs to call the Army in to a situation, it simply will not pass the vote for the declaration. That is how our democracy checks the erstwhile authoritarianism of military rule. In other words, by the operation of the law giving the National Assembly the power to pass a vote or not with regard to a state of emergency, it removes the erstwhile power of that 1993 Decree that transformed into the Armed Forces Act, even without touching the Decree itself.
Now, it is important to clarify the point Mr Ogunye made about the fact that since 1999, “the National Assembly has not passed any new legislation prescribing the conditions for the exercise of the powers of the President to order the military or the Armed Forces to suppress an insurrection”. Of course, it is commonsensical that they have not because it is inconceivable that we should be passing Acts or legislations prescribing the conditions for the exercise of the powers of the President to order the military or the Armed Forces to suppress an insurrection at the drop of a hat. I mean, if we are doing that, it must then be that our society is permanently in a state of turmoil or permanently insurrection-infested to the extent that we are continually passing Acts of the National Assembly to prescribe the conditions for the exercise of the powers of the President to order the military or the Armed Forces to suppress an insurrection and so on. That certainly does not make sense. Rather, what we see is that the National Assembly has chosen to exercise its powers under section 217(2)(c) cautiously because the idea is not to be in conflict with the President whenever he decides to deploy troops; the idea is for the National Assembly to check him when in their judgment he exercises the discretion wrongly.
That is why the Constitution takes care of the above situation with section 305. It is only a lawless President or one steeped in impunity that will not make use of section 305 and instead go straight to use powers under section 217(2)(c) when he knows he cannot act without recourse to the National Assembly when he chooses that route. There is a reason that the only thing required under section 305 is a resolution of the National Assembly, which is a fast and straightforward process that only requires the National Assembly agreeing on a motion and which would only take a few minutes, than an Act of the National Assembly that can take months and years as required under section 217(2)(c). In other words, what is required under the provisions of section 217(2)(c) is not merely a resolution (as would be adequate under section 305), but an Act of the National Assembly, which must go through the full rigours of lawmaking.
Thus, while a state of emergency resolution is temporary (at most one year), an Act of the National Assembly is more permanent. It follows that before the National Assembly would consider it necessary to pass such an Act over the deployment of soldiers under section 217(2)(c), it must really, really be important. The President must have exercised his powers of deployment so egregiously and so dangerously that the men and women in the Red and Green Chambers would have become alarmed enough to act under section 217(2)(c). So, all reasonable people would expect that if a condition calls for the immediate deployment of the military, all the President needs to do is quickly go for section 305 and seek for a state of emergency Proclamation via a quick resolution.
Of course, there is the problem of the wrong national perception about a state of emergency declaration, especially when we use the criminally lawless President Olusegun Obasanjo template, which, rather than protect democracy, actually sought to destroy it through his sack of the legislatures and executives of Plateau and Ekiti States and appointment of former military men as Sole Administrators. The President Goodluck Jonathan declarations of December 2011 and May 2013 had the right democratic temperament, but in the last one, for example, he just jumped the gun with the declaration or announcement of the declaration before concluding the legislative process. But he at least did not sack governors and legislatures, which was commendable.
Thus, in the case we have before us now, it would have been a straightforward case of the President going to the National Assembly for a state of emergency Proclamation if he felt he had a good case. But clearly he didn’t go to the National Assembly because it’s obvious he does not have a good case as there is no insurrection in the South-East and as he fully knows the legislators from that area would have opposed him and might even have gotten others from other areas to join them to oppose him successfully. That is the only reason he could have taken the unlawful route of deliberately breaching section 217(2)(c) and inviting the tackle from the National Assembly because he knows that for political reasons, the tackle will not come.
Something we also need to know (I’ve hinted at it earlier) in order to understand the operation of section 217(2)(c) is that when it says “subject to such conditions as may be prescribed by an Act of the National Assembly”, it is not only referring to an existing Act like the Armed Forces Act which has already prescribed some conditions for the deployment of the Armed Forces, but also to future Acts of the National Assembly which may prescribe conditions under which the President can exercise his power of deployment where it concerns suppression of insurrection and where he is acting in aid of civil authorities to restore order when called upon to do so by the civil authorities concerned. In other words, it’s a power the National Assembly can exercise over the President’s power of deployment before or after he orders deployment. Therefore, you can be sure that unlike when the Armed Forces Act was a Decree, where the President deploys wrongly in the judgment of the National Assembly, they can simply exercise their power to check him by passing an Act of the National Assembly that prescribes conditions under which he would exercise the power even after he has ordered deployment. What to note here is that we are talking an Act, a permanent law, not just a resolution.
There is also a practical reason we have the provisions of section 217(2)(c), even where the National Assembly does not actively exercise their powers under it. Again, it’s common sense. I have stated earlier that the idea is not to hamstring the President in the exercise of his power of deployment, but to ensure that when he does so, he does so rightly. On another level, the drafters of the Constitution realized that if that provision isn’t there, a dictatorially minded President could use the pretext of calling out the army to quell an insurrection to effectively effect a coup against the nation. For instance, what would we do if we assume that the 1993 Decree is effectively what is still being operated with the President having absolute power (as canvassed by Mr Ogunye) and then he calls out the army and, in exercise of his operational authority over them, orders that they remove the governors of 15 states, arrest legislators in 10 states and then he appoints administrators to run affairs in these places? What power do we have to stop that? Mr Ogunye said we cannot do anything, but it is for such a purpose we have section 217(2)(c) because if that happens, all the National Assembly will do is now pass that Act that will subject his powers to such conditions as may be prescribed by that Act. In the scenario we have painted, it simply means the National Assembly, seeing that the President is attacking democracy, will simply pass an Act on its own undoing everything he has done and returning the army to proper civilian control. That’s how democratic laws operate. The Constitution assumes that reasonable people are in charge of its operation until the contrary is proven.
I will like to end this piece by saying something about the National Assembly and their role in all this. I’m sure the most obvious question anyone would ask is why they have just sat there and allowed President Muhammadu Buhari to breach the law so flagrantly. If indeed, they have a role to play in this issue of the deployment of soldiers, why are they not playing it? If they think the President has breached the Constitution, why are they not saying?
Far be it for me to hold out myself as a defender of our chronically underperforming National Assembly, but in this very case, I will try to explain their dilemma, so people can understand why things are the way they are. Of course, I fully understand legal purists who will insist that the National Assembly is shirking its constitutional responsibilities by not only not playing its constitutional role as laid down, but by also not calling the President to order when he wrongfully acts against the letter and spirit of the Constitution, like in this case. Okay, I get that fully and there’s not much one can say in their defence because that is why we elected them, to make the tough decisions no matter whose horse is gored. Having said that let me offer an explanation, not a justification.
It would seem to me that a lot of it has to do with political perception and how the present leadership and membership of the National Assembly have chosen to deal with President Buhari. There seems to be the silent acknowledgement that the President is not very informed about legislative processes and he does not seem to have good and competent advisers in that regard as well. So, both Bukola Saraki and Yakubu Dogara have chosen each to be Buhari’s Man Friday. That means they overlook impunity and pretend all is well, even when evidently not so. In fact, they’ve chosen to be cleaning up after the President.
Take, for example, what happened in the beginning of the year over the deployment of troops to the Gambia. We heard the Senators complain bitterly about the President deploying those soldiers to the Gambia without prior approval of the Senate as stipulated by section 5(4) of the Constitution, yet it was the Senate President that jumped in to defend the President, not only by shutting down the debate, but by pointing out that section 5(5) still allows a period of seven days within which the President could still come for Senate approval even after a potentially unlawful exercise of his power of deployment. But then what happened? The President just roundly ignored the Senate and carried on without the approval. I think on that issue, the Senate bit its collective lips and reckoned discretion was the better part of valour. They probably felt it wouldn’t look good to publicly fight the President over the deployment of Nigerian troops for a hugely successful ECOWAS mission. We certainly can criticize them for this, but I would rather put more of the blame on the President because this is a clear case of gratuitous impunity. He did not only insult the Senate, he insulted the sovereign people of Nigeria.
Now, when we consider the issue we are discussing here, we can see how it’s all got to do with our type of politics too. Imagine if the National Assembly insists on making an Act of the National Assemblyevery time the President thinks he has to exercise his powers under section 217(2)(c), wouldn’t that lead to gridlock in the administration? Wouldn’t we have situations where the President would be accusing the National Assembly of heating up the polity and being hand in glove with insurrectionists or those who don't wish our nation well when they choose to dither as our Rome burns? Wouldn’t the President and his supporters accuse the National Assembly of trying to slow the President down with legislative bureaucracy when what is needed is quick action? Wouldn’t they be loudly out there accusing every member of the National Assembly of corruption if they try to stand up to the President?
It’s also obvious that historically the National Assembly has not shown any inclination to stand in the way of the President’s exercise of his power of deployment because as we have seen with our discussion on insurrection, in nearly all cases of the deployment, the need for it had become clear even before the deployment. The only one that really is questionable is this one that we are discussing now. Of course, as I hinted earlier, we can always have a debate as to whether the National Assembly is actually performing its constitutional duty with regard to troops deployment, but I’d rather say it’s a question of how it’s chosen to do this duty. Nonetheless, the fact that it’s giving the President a lot of latitude does not change the fact of what the law requires; it does not change the fact that the National Assembly has its constitutional role with regard to the deployment of troops and the President cannot usurp or ignore it. For me, the problem we have now talks more of presidential impunity than the legislature’s shirking of its responsibilities.
Having said the above, let me observe that there is some signalling going on now that points to the fact that the National Assembly may be getting impatient with a lawless executive. The September 18th 2017 statement by the Senate President, Bukola Saraki was noted more for its declaration that the Armed Forces declaring IPOB a terrorist organization is illegal, but the real message it was sending subliminally can be seen by those who read between the lines to detect the thinly-veiled attack on the President for over-stretching the military and using them for police duties. “We need to protect our military against dissipation of their fighting strength. And this means we need to strengthen the police and equip them with the capacity to deal with civil crisis. That is why we, in the National Assembly, are already reviewing the Police Act and also looking at the possibility of enabling other para-military agencies to help in curbing civil unrest and maintenance of law and order”. In other words, what Saraki is saying diplomatically is that the Armed Forces should not be deployed for civil duties.
More crucially, in early July here, the Speaker of the House of Representatives, Yakubu Dogara was reported in the news as decrying the fact that Nigeria is effectively in a permanent state of emergency. “It is worrisome that Nigeria is effectively permanently in a state of emergency as the Armed Forces are deployed in more than 28 States of the Federation in peacetime”, he said. Referring to the duty of the Armed Forces under section 217(2)(c), he said: “The Armed Forces have virtually taken over routine police work in Nigeria. It is no longer acting in aid of civil authorities but has become the civil authority itself”.
You can read into all this what you want, but it’s a clear indication that the National Assembly isn’t anymore quite comfortable with just looking the other way as the President is deploying soldiers to take over normal police work. I’m happy with the delicate way they are treating the President so far with regard to this deployment, but I think if they want to maintain social and political harmony, they need to begin to act to protect the ordinary people being affected by these deployments, quite apart from continuously engaging the President on the matter. They need to impress it upon the President directly the need to protect our democracy because sometimes these acts are actually championed by people who peddle wrong information and give the President wrong advice. So, it’s crucial those of them who are leaders at the very top spend more time with the President discussing these issues and letting him know the implications of some of these unconstitutional decisions.
One thing that gladdens my heart is the fact that the judiciary has always been firm in its treatment of this matter of military deployment for civil duties. They’ve always been upstanding once these types of cases are brought to court. In cases where the President has overreached himself, for instance in the cases of Presidents Olusegun Obasanjo and Goodluck Jonathan’s deployment of the military for election purposes, the courts have not hesitated to declare such deployments unconstitutional. We have also mentioned two cases here where they seem to have given us a template of how to approach questions of military deployment and the bigger danger they pose to our democracy. For instance, the comment of the Court of Appeal in Yusuf v Obasanjo (2005) is instructive and worth repeating: “It is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious steps should be taken to civilianise the polity to ensure the survival and sustenance of democracy”. I recommend that the wisdom in this comment be imbibed by all public interest lawyers and politically conscious citizens when approaching this issue, whether in court or in any public discussion. That way, we will be helping the citizens with the right information to help them defend their democracy better.