At a public lecture delivered at the Chatham House in London last month, the National Security Adviser (NSA), Colonel Sambo Dasuki disclosed that he had “advised” the Independent National Electoral Commission to postpone the election. The reason adduced then for the unsolicited advice was that INEC needed time to distribute permanent voters’ cards to all registered voters. As an adviser to the President on national security the NSA has no powers whatsoever to give directives or advice to INEC. Indeed, there is no statutory nexus between INEC and the NSA to warrant the purported demand for the postponement of the General Elections. INEC rightly rejected the unwarranted interference from the NSA.
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.
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.
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.
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