We assert that even the President of Nigeria has no power whatsoever to call out the armed forces and unleash them on peaceful citizens except in exceptional circumstances which does not fall in this instance.
Our attention is drawn to a circular by the Chief of Army Staff, Tukur Buratai, commanding soldiers to embark on an action he tagged 'Op-Second Eleven’ and which is organised for the "enforcement of government movement restriction order" over Coronavirus.
Our sincere wishes had been that the military would follow the path of reason to jettison such a misguided ambition, which clearly has no legal standing within the Nigerian jurisprudence. However, we are disturbed by the updates we are receiving about the brutality, physical assault and attack unleashed on citizens by soldiers in the name of enforcing government orders.
We assert that even the President of Nigeria has no power whatsoever to call out the armed forces and unleash them on peaceful citizens except in exceptional circumstances which does not fall in this instance.
It remains trite law that armed forces or the military have no right to dabble into civil activities except perhaps, to exercise their right of franchise during elections and vote in their barracks. By virtue of Section 217 (1) and (2) of the 1999 constitution, the functions for which the military is established are:
(a) Defending the nation 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) Performing such other functions as may be prescribed by an Act of the National Assembly.
In the case of APC V PDP & ORS CA/EK/EPT/GOV/1/2015, LN-e-LR/2015/14 (CA), the Court of Appeal warned that: "Even the item (2) (c) which talk about suppression of insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, appears to be applicable only in the event of insurrection, to restore order and, even then, the military must be invited by the President, upon fulfilment of specified conditions, prescribed by an Act of the National Assembly."
The court further held that: "Even the president of Nigeria has no powers to call out the armed forces and unleash them (military officers) on a peaceful citizenry and even in the event of insurrection or insurgency, the call on the armed forces to aid civil authorities to restore order, must be with the approval of the National Assembly which must provide conditions as specified in Sections 217 (2) and 218 (4) of the 1999 constitution, (as amended)."
This point was also established in the case of Yusuf V. Obasanjo (2005) 18 NWLR (pt. 956) 96 at 174-175, when, His Lordship, Salami JCA (as he then was) said:
“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, after wrestling power from the military in 1999. Conscious steps should be taken to 'civilianise' the polity and thereby ensure survival and substance of democracy”.
Against the foregoing, we hereby call on any Nigerian who has been or is being unlawfully harassed by the military in the process of enforcing government directive to immediately reach out to us via our email: [email protected] and we will bring the full weight of the law against such erring military officer.
Tope Akinyode is the National President, Revolutionary Lawyer's Forum