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? These are the two questions we intend to answer in this intervention. The law we know is being mischievously stated. We hold ourselves bound to a duty to correct the misstatement.
We are 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, “an unrepentant militarist” and a “Hausa Fulani power hegemon and supremacist”, who is alleged to have a deep seated hatred for the Igbos.
Before the actual commencement of the operation, however, a major confrontation took place in Umuahia, the Abia State capital. The soldiers who were on patrol with an Armoured Personnel Carrier in the area of the residence of Nnamdi Kanu, the leader of the Indigenous Peoples of Biafra (IPOB), were physically prevented by members of IPOB from passing through a road. The soldiers were denied the right of way by IPOB members for reason of their fear that the military patrol was a pretext for the invasion of the house and eventual arrest or abduction of their leader, Nnamdi Kanu. In the confrontation, IPOB members pelted the soldiers with stones and sticks and other hard objects (missiles) while the soldiers fired warning shots to disperse their assailants. In the process, a soldier and a passerby were injured while IPOB claimed that three of its members suffered gun shots injuries.
We have earlier made public statements, stating unambiguously that the men and officers of the Nigerian Army who were blockaded on the 10th of September, 2017 had a right to conduct their operations without hindrance by IPOB members. The security situation in Abia State has since escalated. When a video depicting the barbaric acts of soldiers subjecting alleged members of IPOB to inhuman and degrading treatments went viral, we also made a public statement unequivocally condemning the illegal and unconstitutional acts of the soldiers, as depicted in the video. The military high command has promised to investigate the video in order to determine its authenticity, and bring perpetrators of the acts to military justice if it is established that soldiers actually committed those dastardly acts. Nigerians should hold the Nigerian Army to its promise.
Some persons have obliquely and spinelessly castigated us for shedding crocodile tears for condemning the alleged violations of the human rights of the IPOB members in the video. They claim that the occurrence of the violations so early before the actual commencement of the military operations is a vindication of their opposition to the deployment of the troops, which they have labelled an invasion of the South East. They contest the constitutional and legal validity of deployment of troops to the South East, and to Abia State and Umuahia, in particular. They argue that Nnamdi Kanu is undergoing a criminal trial and is being prosecuted by the Federal Government of Nigeria. They reason that if he has violated his bail conditions or terms of his release on bail, it is only the Court that could revoke his bail and order his re-arrest and detention in custody. They lump issues together to obfuscate the central matter, which is the question of the lawfulness or constitutionality of the military operation. In our humble view, they are wrong.
IPOB and its supporters have argued that Operation Python Dance II is targeted at IPOB, a harmless and unarmed civil organization calling for secession, restructuring, right to self-determination or referendum on a secession vote ( whatever Kanu says, as it suits him).They claim it is an invasion of the South East, the aboriginal and indigenous space of the Igbo. They claim there is no insurrection or threat to law and order and public safety in the South East that justifies the deployment of the troops. IPOB is not armed, they say, and its members have a right to freedom of association, right to freedom of thought and conscience, and right to freedom of expression- all guaranteed by and under the Constitution of Federal Republic of Nigeria, 1999.
The facts of IPOB’s activities, and other sundry activities of criminal gangs in the South East are notorious enough for anyone to form an opinion on whether there was an insurrectional situation in the South East; or whether IPOB activities threatened the peaceful coexistence of Nigerians in the South East or imperiled the preservation of law and order or endangered lives and property, or put public order and safety in jeopardy, to warrant a military operation. In this intervention, we do not want 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. We believe that there is a factual basis for the President to exercise his powers to order Operation Python Dance, but we restrictively want to argue the law that allows a president to order the deployment of troops within the Country to embark on an internal security operation if he comes to the conclusion that there is an insurrection or an endangerment of public order or safety.
A military operation does not become illegal or unconstitutional because alleged or real rights violations occur during the operations. And if one decries or condemns rights abuses that occur in the course of a military operation, one does not become hypocritical because one earlier had pointed out the legality and constitutionality of the military operation. A declaration or prosecution of a war does not become illegal or unconstitutional because of incidence of rights abuses by soldiers or perpetration of war crimes during the prosecution of such war. Amnesty International has been having issues with the Nigerian Armed Forces over alleged gross human rights violations in the course of prosecution of the anti Boko Haram War in North Eastern Nigeria. That does not render the military operation in the North East illegal and unconstitutional.
Also, the fact that Nnamdi Kanu is undergoing trial and he is on court bail does not mean that if he commits a fresh crime or new criminal offences related to or different from the offences for which he is standing trial, he cannot be rearrested, investigated and charged to court. separately. We have earlier stated that a trial court, pursuant to Section 169 of the Administration of Criminal Justice Act, can, upon the application of the Attorney-General of the Federation, revoke the bail granted to a criminal defendant for reasons of violation of the terms of his release. The argument has been peddled, therefore, by IPOB and Kanu’s sympathizers that the Federal Government of Nigeria should wait for the trial resumption date to make the needful application for the revocation of Kanu’s bail, if it feels strongly about his activities. Again the trumpeters of this line of illogical argument are wrong. Kanu is in court for what he allegedly did in the past. Not for what he has done since his release on bail and for what he is currently doing; and certainly he is not in court for what he may do in the future. If a new cause of action arises, he can be a subject of a fresh criminal investigation or prosecution or an internal security operation.
In any case, Nnamdi Kanu and IPOB and members of IPOB are not one and the same person. Although Kanu and members of his IPOB may share a collective responsibility for alleged crimes that they may jointly commit, each of those members bears individual responsibility for his or her criminal act. The activities of Kanu, and his IPOB that may warrant an internal security operation may be different from the criminal charge that is being prosecuted. From the arguments being bandied, it is obvious that a desperate attempt is being made 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. This desperate attempt is dubious.
In resolving the question of the legality and constitutionality of Operation Python Dance II, we must consider the provisions of Sections 217, 218, 219 and 220 of the Constitution of the Federal Republic of Nigeria, 1999; Section 305 of the Constitution governing the declaration or proclamation of a state of emergency and Section 8 of the Armed Forces Act, Volume 1, Cap A20, LFN, 2004. When these provisions are read, it will be clear, even to a layman, that Operation Python Dance II is legal and constitutional.
Section 2 17 (1 &2) of the Constitution provides that:
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; and
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 – (a) 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) performing such other functions as may be prescribed by an Act of the National Assembly.
Section 218 (1, 2, 3 & 4) of the Constitution provides that:
1. 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.
2. The powers conferred on the President by subsection (1) of this section shall include power to appoint the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and heads of any other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.
3. The President may, by directions in writing and subject to such conditions as he may think fit, delegate to any member of the armed forces of the Federation his powers relating to the operational use of the Armed Forces of the Federation.
4. The National Assembly shall have power to make laws for the regulation of – ( a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.
And Section 219 of the Constitution provides that:
“The National Assembly shall – (a) In giving effect to the functions specified in section 217 of this Constitution; and (b) with respect to the powers exercisable by the President under section 218 of this Constitution.– by an Act, establish a body which shall comprise such members as the members of the National Assembly may determine, and which shall have power to ensure that the composition of the armed forces of the Federation shall reflect the federal character of Nigeria in the manner prescribed in the said section 217 of this Constitution.”
Section 305 of the Constitution provides for declaration of a state of emergency. It states extensively as follows:
1. Subject to the provisions of this Constitution, the President may by instrument published in the Official -Gazette} of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.
2. The President shall immediately after the publication, transmit copies of the Official -Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.
3. The President shall have power to issue a Proclamation of a state of emergency only when –
a) the Federation is at war;
b) the Federation is in imminent danger of invasion or involvement in a state of war;
c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;
f) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or
g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.
4. The Governor of a State may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State
5. The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.
6. A Proclamation issued by the President under this section shall cease to have effect –
a) if it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;
b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;
c) after a period of six months has elapsed since it has been in force: Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or
d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.”
And Section 8 (1, 2 &3) of the Armed Forces Act, Cap. A20, LFN, 2004 provides thus: “
(1) The President shall determine the operational use of the Armed Forces, but may, under general or special directives, delegate his responsibility for the day-to-day operational use – (a) of the Armed Forces, to the Chief of Defence Staff; (b) of the Army, to the Chief of Army Staff; (c) of the Navy, to the Chief of Naval Staff; and of the Air Force, to the Chief of Air Staff.
2) It shall be the duty of the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, as the case may be, to comply with any directive given to them by the President under subsection (1) of this section; and
(3) In this section, “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.”
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.
It is our humble submission 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. This is the power he 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.
As believers in constitutional law and democracy, representative government, and a government of enumerated and limited powers, who detest absolutism, we may be alarmed by these wide powers of our President. For sure, we have our concerns over the wideness of the powers. But we cannot engage in legal sophistry to deny that the powers exist and are specifically vested in the President.
The Armed Forces Act in Section 217(2) (c) provides that the Armed Forces shall “suppress insurrection and act 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”. 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.”.
And Section 8 (1) of the Armed Forces Act, Cap. A20, LFN, 2004 provides that (1) the President shall determine the operational use of the Armed Forces, but may, under general or special directives, delegate his responsibility for the day-to-day operational use – (a) of the Armed Forces, to the Chief of Defence Staff; (b) of the Army, to the Chief of Army Staff; (c) of the Navy, to the Chief of Naval Staff; and of the Air Force, to the Chief of Air Staff.
Section 8 (3) of the Armed Forces Act states clearly that “in this section, “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.”
Under these provisions, whenever there is an insurrection, the President may call on the military to suppress same and act in aid of civil authorities. The President is the one that makes the call or gives the order. He does not share the “glory or majesty” of that call with anybody. The President exercises this power “subject to such conditions as may be prescribed by an Act of the National Assembly”. 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. 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. 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.
We submit 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. That interpretation will be absurd and indeed will render the provision totally dormant and inoperative. The National Assembly may not make such a law, and may not be compellable by an order of mandamus from a court of law to make it. In any case, there is an assumption that the Armed Forces Act has contemplated, and incorporated such conditions, and that there is no fresh need to amend that Act or pass a new legislation prescribing the conditions for the President’s exercise of the power to call out soldiers to suppress an insurrection.
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.
Is there a possibility that these wide powers granted the President by the Constitution and the Armed Forces Act can be abused or misused? Yes, of course. Do we share the view that these powers ought to be more narrowly defined? We do. But we will not deny that these powers exist. Candour and intellectual honesty demand no less.
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.
We have written nothing here to say that we oppose restructuring, devolution of powers, true federalism, merger rationalisation or consolidation of fledgling contiguous and historically linked states, fiscal federalism, return to regionalism, or the conduct of a referendum on secession. We support the convocation of a sovereign national conference where all these options can be on the table, and hopefully can be democratically and peacefully resolved.
But when the laws of the land that govern our social, economic and political interactions in our country are being so terribly misinterpreted, we must dutifully weigh in. It may well be that when we realize the “draconian import” of this law, we may be moved to amending it.
We end the essay with the admonition of the Supreme Court in the case of Obi v INEC, reported in 2007 11 N.W.L.R (Part 1046) at page 565, where the Supreme Court interpreted the provision of Section 180 (1&2) of the Constitution of the Federal Republic of Nigeria, 1999 which governs the tenure of office of governor of a state. The Court stated emphatically that the tenure of office of Governor Peter Obi, who took the oath of office on 17th of March, 2006, as Governor of Anambra State, upon the nullification of the election of Dr. Chris Ngige to the said office, conclusively by the Election Petition Appeal Tribunal, would come to an end four years after Governor Peter Obi took the oath of office.
In rejecting the arguments of INEC that granting Governor Obi’s reliefs would mean that elections could not be held in Anambra State every four years, as provided by the Constitution, the Supreme Court held that although the Constitution must be read together as a whole, it must be interpreted and administered as it is. Subjective notions and ideas, no matter how altruistic, cannot be imported into it. Aderemi, J.S.C, delivering the leading judgment of the Seven Panel Court, stated the law ( at page 645, paras A-E ) thus:
“I hold the strong view that law making, in the strict sense of that term, is not the function of the judiciary but that of the legislature. Let there be no incursion by one of the government into that of the other. That will be an invidious trespass. Let me point out that no Constitution fashioned out by the people, through their elected representatives, for themselves, is ever perfect in the sense that it provides a clear–cut and/or permanent or everlasting solution to all societal problems that may rear their heads from time to time. As society grows or develops, so also must the Constitution, written or unwritten.. Our problems as judges should not and must not be to consider what social or political problems of today require; that is to confuse the task of a judge with the task of a legislator. More often than not, the law, as passed by the legislators, may have produced result or results which do not accord with the wishes of the people or do not meet the requirement of today. Let that defective law be put right by new legislations, but we must not expect the judex, in addition to all his other problems, to decide what the law ought to be. In my humble opinion, the judex is far better employed if he puts himself to the much simpler task of deciding what the law is”
If judges must not abandon what the law is, to decide what the law ought to be, by embarking on a skewed interpretation of the law, why should lawyers, Nigerian lawyers do so? Why?
Jiti Ogunye, a lawyer, public interest attorney, legal commentator, author, and essayist, is the legal adviser of PREMIUM TIMES.
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria