Operation Python Dance II: What Says The Law?

Stephen Ubimago takes a survey of the principles of municipal and international law governing troop deployment; and questions the propriety of the latest action of the Federal Government in its Operation Python Dance II exercise currently afoot in the South East geopolitical zone of the country…

Background

As at Tuesday September 12^th, the country-home of leader of the Indigenous People of Biafra (IPOB), Mazi Nnamdi Kanu, in Afara-Ukwu, Abia State, had been besieged and cordoned off by a detachment of officers of the Nigerian Army.

The development, which raised tensions in the embattled community, saw the state Governor, Dr. Okezie Ikpeazu, declaring a dusk to dawn curfew in the state supposedly to forestall any break down of law and order.

It is however curious that the Army which 48 hours earlier had vehemently denied that its reconnaissance or so-called “show of force” in the area was targeted at Kanu, would later contradict, by conduct, their earlier denial when on Tuesday they returned and besieged the separatist leader’s abode, thereby effectively keeping him under house arrest.

In this connection, his lawyer, Ifeanyi Ejiofor, confirmed to newsmen that Kanu’s residence had been surrounded by soldiers who, according to him, arrived his home in their thousands; adding that his whereabouts is unknown as yet since no one could gain access to him.

The soldiers are said to have arrived the community with about 10 armoured carrier vehicles and seven Hilux vans, causing panic and forcing shop owners to close immediately.

Some of the soldiers are even said to have invaded the Abia State Council of the Nigerian Union of Journalists (NUJ) on Aba Road, Umuahia, and destroyed laptops and other valuables.

But for watchers, the development was not unpredictable in light of the August 21 presidential broadcast delivered by the nation’s leader, General Muhammadu Buhari, following his return from London where he had spent about 104 days on medical vacation.

Analysts argue that although without mentioning Kanu’s IPOB, the speech was engorged with references to the separatist agitation against which the president had pledged a commitment to squash, since for him, “The unity of Nigeria is non-negotiable.”

He intoned, “Nigeria’s unity is settled and not negotiable. We shall not allow irresponsible elements to start trouble and when things get bad they run away and saddle others with the responsibility of bringing back order, if necessary with their blood.

“Terrorists and criminals must be fought and destroyed relentlessly so that the majority of us can live in peace and safety.”

Twenty-four hours after the broadcast, the President on Tuesday August 22 presided over a crucial meeting of the National Security Council, attended by the nation’s military and security chiefs as well as the Inspector General of Police.

Accordingly, the meeting was attended by the Vice President, Professor Yemi Osinbajo; National Security Adviser, Babagana Monguno; Director-General, Department of State Security, Lawal Daura; Chief of Air Staff, Air-Marshal Sadique Abubarkar; Chief of Defence Staff, Gen. Abayomi Gabriel Olonisakin; Chief of Army Staff, Lt-Gen. Tukur Buratai; Chief of Naval Staff, Vice-Admiral Ibok Ete Ekwe Ibas; and the Inspector General of Police, Ibrahim Idris.

The security chiefs were reportedly given marching orders by the president to deal decisively with the threats posed to the nation’s corporate existence by the likes of IPOB, among others.

“The issue of security, ranging from terrorism to kidnappings, herdsmen/farmers’ clashes to the IPOB issue, were all treated,” Gen. Olonisakin said, while briefing journalists after the presidential parley.

Thus, by September 8^th, the presidential directive had either been streamlined or narrowly interpreted as simply an order to decimate what appeared the threat of IPOB, as on that date, the Nigerian Army declared “Operation Python Dance II,” i.e. Exercise Egwu Eke II, in the South-East region.

In a statement, the Nigerian Army Chief of Training and Operations, Major General David Ahmadu, at the Army Headquarters in Abuja announced the commencement of the 30-day military exercise.

According to him, the exercise will tackle major security challenges facing the South-East region of Nigeria including violent agitations, assassinations, banditry and other security challenges.

Exactly two days after, September 10, conflicting reports emerged that a clash had taken place between the Army and some members of IPOB, which had resulted in the death of three and others wounded.

According to Kanu in a briefing of journalists, the detachment of soldiers, battle-ready in a personnel armoured carrier, were only stopped in their track while trying to negotiate the road leading to his residence when IPOB supporters waylaid them, resulting in the Army opening fire to scare the youths.

However, vehemently denying IPOB’s narrative, the Nigerian Army in a statement signed by Assistant Director, Army Public Relations, Major Oyegoke Gbadamosi, said no attack was visited Kanu’s residence by the Army.

According to him, “This is far from the truth. Rather, it was a group of suspected IPOB militants that blocked the road against troops of 145 Battalion while in ‘a show of force.’

“They insisted that the military vehicles would not pass and started pelting soldiers with stones and broken bottles to the point of injuring an innocent female passerby and a soldier, Corporal Kolawole Matthew. The troops fired warning shots in the air and the hoodlums dispersed. No life was lost.”

But by September 12, news filtered in that the Army had returned to the Community and had gone on to cordon off Kanu’s residence.

In a statement signed by IPOB’s Media and Publicity Secretary, Emma Powerful, the group said Nigerian army and police in uniforms surrounded Kanu’s house with intent to assassinate him and other IPOB members, adding that they forcefully abducted and brutalized anybody seen with Biafra insignia.

Besides, several persons were on same day feared killed following a clash between soldiers and members of IPOB in Aba, as stampede at Ariaria International Market erupted due to alleged sporadic shooting by soldiers.

Questions Agitating Many Minds

Against the backdrop of the forgoing developments, the question agitating many a mind is whether the action of the Muhammadu Buhari-led Federal Government in deploying the Army to the South East in peacetime on account of squashing the separatist agitation of IPOB is backed by law?

Recalling that the Army had disclosed that the Operation Python Dance II exercise is aimed at tackling security challenges, which they identified as “violent agitations, assassinations, banditry and other security challenges in the South East states,” question also arises as to whether the statutory remit of the Army covers those and if it does under what conditions?

Constitutional Role of the Army

Detailing the functions of the Army, section 217 of the 1999 Constitution, as altered, under subsection (2) provides:

“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) Performance such other functions as may be prescribed by an Act of the National Assembly.

In light of the above, it is also apt to ask whether the separatist campaign of IPOB for which the Army was deployed under the Egwu Eke II exercise amounts to “External Aggression” pursuant to paragraph (a) as above; or whether it threatens Nigeria’s Territorial Integrity” and breaches the security of the nation’s borders pursuant to paragraph (b); or whether it amounts to an “Insurrection” for which the Army’s exercise is carried out in aid of civil authority pursuant to paragraph (c)?

Is Kanu’s Agitation Protected Under International Law?

Kanu has repeatedly stated that what IPOB is clamouring for is simply the restoration of Biafra vide a United Nations (UN)-monitored referendum to determine whether or not Igbo people and other kindred groups in the South-South and South-East geopolitical zone wish to either remain in Nigeria or have a separate state of their own.

He maintains that IPOB’s demand is guaranteed under numerous international law instruments which protect the right to self-determination.

The UN Charter, the International Convention on Civil and Political Rights (ICCPR), the International Convention on Economic, Social and Cultural Rights (ICESCR), the African Charter on Peoples and Human Rights (ACPHR), as well as numerous UN General Assembly Resolutions, among others, all preserve self-determination as a fundamental right.

For example, the 1970 General Assembly Resolution 2625, otherwise, the “Declaration on Principles of International Law Concerning Friendly Relations,” states under Principle 5 (1) that: “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”

Although, the self-determination principle has been qualified to preclude the call for secession under the same Declaration, however in Reference re Secession of Quebec, the Canadian Supreme Court posited that the call for secession may assume the status of a right under international law if a people’s call for self-determination is not respected at least within the borders of the exiting parent state and under conditions of gross political marginalization.

In light of the above, it is safe to argue that IPOB’s separatist call neither offends any principle of international law nor does it by any means amount to “External Aggression” against the Nigerian state, since for one, IPOB members are not armed, and their activities are characteristically passive resistance.

Even reference to Kanu’s declaration that the November Guber poll in Anambra State will not hold is hardly in breach of any municipal or international law, since it is clearly anticipatory and not in direct breach of any known law.

Nor can it be said that IPOB’s separatist agitation offends the Territorial Integrity of Nigeria if the Advisory Opinion of the International Court of Justice (ICJ) on Kosovo is anything to go by.

The ICJ stated expressly: “The scope of the principle of territorial integrity is confined to the sphere of relations between States.”

Since IPOB is not a state, it therefore lacks the capacity under international law to threaten the Territorial Integrity of Nigerian. In other words, the concept does not apply to non-state entities.

Moreover, from what is clearly known of the secessionist organisation, they have been peaceful, barring the violence and aggression which for the umpteenth time has been visited on it by the nation’s security forces, for whom the only offence of the organisation seems to be that it dared to demand for the political independence of the territory they regard as Biafra.

To that extent, it would be dishonest to describe, as the Army is wont to do, the group’s activities as “violent agitation” or an “insurrection” or violent uprising against the Nigerian government, requiring the intervention of the Army.

Judicial Intervention/Position of International Statutes

It is in view of the above considerations that not a few lawyers have frowned at the government’s decision to deploy the military to crush IPOB, saying that since their campaign is passive resistance, conscientious and ideological, the application of force or brutal suppression will solve no problem.

For a largely civil group, concerns that they may “cross the red-line” could readily be peremptorily contained not by the Army but the police, which ordinarily have been constitutionally saddled the task under section 214.

According to the Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (PT 956) 96, “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.”

In Gbajabiamila v. President Jonathan, et al, Justice Ibrahim Buba of the Federal High Court in Lagos ruled in respect of the deployment of soldiers to civil duties, saying 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’.

Besides, Articles 25 of The Hague Convention on the Law and Custom of War also imposes an obligation on national Armies to avoid “the attack or bombardment of towns, villages, habitations or buildings which are not defended,” saying a contrary action “is prohibited.”

Proper construction of that provision goes to the effect that international law prohibits a situation where the armed forces are unleashed on a civil population or groups guided by the Gandhian doctrine of Satyagraha or passive resistance.

Conclusion

It suffices to note that IPOB’s agitation is not without foundation or provocation seeing that under the Buhari government never has Igbo people been more marginalized and denied a sense of belonging in the Nigerian project, a critical factor fuelling the agitation.

This being the case, the proper approach to dealing with the IPOB issue should be political, not military suppression, as noted by prominent lawyer Ebun Olu-Adegboruwa, who added, “Let the military go back to their barracks and submit to civilian authority; there is no insurrection going on in any part of the South East now to warrant the display of military force or deployment.”