Femi Falana (SAN)

* Urges Military Not To Intimidate Voters During Elections

It is on record that the armed forces were not involved in all the elections conducted under the defunct military dictatorship in Nigeria. But former President Olusegun Obasanjo introduced the illegal deployment of armed troops into the  electoral process.

Thus, the armed personnel deployed  for the manipulation of the 2003 general elections engaged in the intimidation of voters and extrajudicial killling of not less than 200 people. Since then Nigerian courts have consistently enjoined the Federal Government to desist from involving the armed forces in the conduct of elections.

In the  judgment of the Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (Pt ) Abdullahi PCA (as he then was)  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 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 civilianise the polity to ensure the survival and sustenance of democracy”.

The Court of Appeal reiterated its views in the case of Buhari v Obasanjo (2005) 1 WRN 1 at 200 when Salami JCA (as he then was) 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 aforesaid pronouncements of the Courts President Obasanjo deployed several battalions of soldiers to many states for the 2007 “do or die” general election. His successor, the late President Umaru Yaradua continued the illegal policy as he deployed soldiers for the rerun gubernatorial election in Ekiti state in 2009. A week before the deployment, Mr. Dimeji Bankole, the then Speaker of the House of Representatives had during a political rally at Igede Ekiti on April 2, 2009 sang ” A o lo soja, awa to lo mopol lojosi, a o lo soja” ( we shall use soldiers this time around, we who used mobile police the other time, we shall use soldiers this time around).

It is on record that President Jonathan continued the illegal practice of deploying the armed forces for the intimidation of voters and the rigging of elections in favour of the ruling party. Hence, the armed forces were involved in the conduct of the elections in Edo, Anambra, Osun, and Ekiti governorship elections. On June 19, 2014, two sitting APC governors, Comrade Adams Oshiomole and Mr. Rotimi Amaechi of Edo and Rivers states respectively had  their fundamental right to freedom of movement  violated at Iju-Itagbolu in Ondo State by armed soldiers who crudely prevented them from attending a political rally at Ado Ekiti. The soldiers had claimed that they were acting on “orders from above”.

The armed soldiers also subjected every hotel at Ado Ekiti to a search without warrant between 10pm and 2am for the sole purpose of ejecting all those who could not give “satisfactory” explanation of their business in Ekiti State? Yet while all “illegal aliens” like Governor Oshiomole and Amaechi and others suspected to be All Progressive Congress members were harassed and expelled from the state by the army some non-indigenes who were chieftains of the People’s Democratic Party including two serving ministers and an influential thug from Anambra state were allowed to “monitor” the election. Indeed, they were fully protected by the armed troops.

Although the Court of Appeal affirmed the verdict of the Ekiti State Governorship Election that Mr. Ayo Fayose of the PDP won the governorship election it did not hesitate to condemn the intimidation of voters by armed troops. Speaking for the Court, Justice Abdu Aboki stated, “Even the President of Nigeria has no power to call on the Nigerian Armed Forces and to unleash them on peaceful citizens, who are exercising their franchise to elect their leaders.  Whoever unleashed soldiers on Ekiti State disturbed the peace of the election on June 21, 2014; acted in flagrant breach of the Constitution and flouted the provisions of the Electoral Act which requires an enabling environment by civil authorities in the conduct of elections.”

Shortly before the 2015 general election, the Federal High Court, sitting in Sokoto, had declared  the planned involvement of the armed forces in the democratic exercise 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 was desirous to deploy soldiers for elections in the country the judge advised him to request  the National Assembly to enact a law to that effect. In the same vein, Justice Mohammed Buba of the Federal High Court granted the relief sought by Honourable Femi Gbajabiala and restrained President Jonathan from deploying the armed forces for the 2015 general election.

But in defiance of the restraining orders of perpetual injunctions granted by the courts against the involvement of armed troops for elections former President Jonathan directed them to guarantee “security” during the 2015 general election. Similarly, President Buhari has  deployed the armed forces to maintain “law and order” during the 2019 general election. In fact, the Chief of Army Staff, General Yussuf Buratai has been threatening to deal ruthlessly with electoral offenders arrested during the elections!

In view of the judicial authorities cited above it is submitted that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified by virtue of section 215(3) of the Constitution which has vested the Police with the exclusive powers to maintain and secure public safety and public order in the country. However, the President is empowered under 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.

As the Constitution has limited the involvement of the armed forces in internal security to the suppression of insurrection including insurgency and aiding the police to restore order when it has broken down 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 line with the official policy of the Buhari administration to end impunity in the country the federal government should stop all members of the armed forces from performing police duties. Consequently, the Nigeria Police Force should be adequately equipped and funded 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.

However, despite the contemptuous decision of the authorities of the armed forces to involve armed military personnel in the 2019 general elections they are advised to comply with the directive of the Commander-in-Chief of the armed forces, President Mohammadu Buhari not to subject voters to intimidation while casting their votes on February 23 and March 9, 2019. Therefore, since the movement of all citizens including voters is  restricted to their wards during the elections the police and civil defence officials ought to be allowed to maintain law and order while the military personnel deployed for the democratic exercise should be placed on alert in their barracks.

Finally, it is sad to note that the high command of the Nigerian Army which had retired the military officers indicted by the probe panel set up to investigate the allegations of intimidation of voters during the 2015 general election has turned round to endorse the illegal involvement of armed troops in the 2019 general election. It is an irony that some of the lawyers  who had conveniently cited the Geneva Convention to justify the deployment of armed personnel for the 2015 general election by former President Jonathan have now turned round to realise the illegality of such deployment by President Buhari for the 2019 general election.

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