According to the Army press release, the President acted pursuant to Section 218 of the Constitution which gives the President the "power to determine the operational use of the armed forces of the Federation." But that power is NOT absolute as it is unarguably qualified by Section 217, which clearly sets forth the situations/conditions for the exercise of that power.
Yes, I will say it again that - 'Operation Python Dance' or Egwu Eke 2' - is unconstitutional. Below are the points and authorities:
1. According to the Army press release, the President acted pursuant to Section 218 of the Constitution which gives the President the "power to determine the operational use of the armed forces of the Federation." But that power is NOT absolute as it is unarguably qualified by Section 217, which clearly sets forth the situations/conditions for the exercise of that power. The circumstances/conditions are:
(i) for the defense of Nigeria from external aggression.
(ii) for the maintenance of the territorial integrity and securing the borders of Nigeria from violation on land, sea and air, AND ...
(iii) for suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President; subject to such conditions as may be prescribed by an Act of the National Assembly. In this last scenario, that is - suppression of insurrection and assistance to civil authorities - the President can only invoke such powers on terms prescribed by an Act of the National Assembly. Python Dance was predicated under this subsection. Think!
2. To be sure, the power to deploy troops to suppress an insurrection is exactly what it says ... suppressing insurrection, not fighting kidnapping, armed robbery, killing of priests and certainly not in suppressing 'unarmed' agitation ... as the army press release stated. To be clear, 'agitation is garden variety expression of political opinion/peaceful assembly expressly protected under Chapter IV of the Constitution'. It's easily distinguishable from 'internal insurrection', which bears two elements - active bearing of arms; and actual levying of war against the federal government. In the interim, there's no such thing in the Southeast. And all the reasons adduced for Egwu Eke are prevalent in all parts of Nigeria.
3. There are three recent and closely related judicial pronouncements (two from Federal High Court, one from Court of Appeal) that are considered locus classicus on the issue at bar. The details are as follows:
(i). In a January 2015 judgment, Justice R.M. Aikawa of the Federal High Court Sokoto invalidated President Jonathan's unilateral deployment of soldiers for the June 2014 Ekiti State guber election. The judgment restrained Jonathan “from engaging the service of the Nigerian Armed Forces in the security supervision of elections in any manner whatsoever in any part of Nigeria, without an Act of the National Assembly.”
(ii). On appeal, the Court of Appeal, per Justice Abdul Aboki, in a judgment delivered in February 2015, held that “the President of Nigeria has no powers to call on the Nigerian Armed Forces and to unleash them on peaceful citizens". The court maintained that 'Section 215 of the 1999 Constitution makes the maintenance of internal security, including law and order the exclusive responsibility of the police'.
(iii). The following month - in March 2015 - the Federal High Court (in Gbajabiamila v. President Jonathan, et al) ruled on the same issue, and that is: deploying soldiers to civil duties. Justice Buba of that court stated that deployment of soldiers to civil duties such as elections was a contravention of Section 217(2) (c) of the Constitution and section 1 of the Armed Forces Act, noting particularly that the 'military was not needed for civil duties'. The judge said that 'the law does not make provision for the military to be involved in civil activities'. He also said that 'the appellate court directly interpreted the Constitution when it held that Sections 215 and 217 jointly limit the president’s power to deploy soldiers to the suppression of insurrection and to aid the police to restore order when it has broken down'.
4. The foregoing three separate judicial pronouncements have clear support in judicial history. They are:
(i). The Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (PT 956) 96, held that “It is up to the police to protect our nascent democracy and not the military, otherwise 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.”
(ii). On the same issue, the Supreme Court in Buhari v Obasanjo (2005) 2 NWLR (Pt. 910) 24, at 520 – 521, Nsofor, JCA, stated as follows: "There was no state of war in any of those States, no emergency declared therein. On the other hand there was peace and calm and tranquility".
5. Let it be clear that at issues in the foregoing precedents as well as Python Dance are two ...
(i). The power of the President to deploy soldiers to civil or police duties. So, if the Courts did not find, as in the foregoing precedents, that 'electoral violence' is sufficient cause to deploy soldiers to police/civil duties, it's more than likely that the justifications offered for Egwu Eke would be summarily struck down; AND ...
(ii). Should the President find cause to deploy soldiers to deploy soldiers suppress insurrection and act in aid of civil authorities to restore order, he MUST first seek the permission of the National Assembly.
On the basis of the foregoing, I predict that a flurry of lawsuits will be levied against Python Dance in the next few days.