By Mbang Confidence
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Introduction
Some months ago, the media space was littered with news and comments about the death of ambushed soldiers who were on a peace keeping mission at Okuoma community due to communal clash with their neighboring Okoloba community in Delta State. Recently, it was also reported that five (5) soldiers were killed at a checkpoint in Aba, Abia State. Generally, while Nigerians strongly condemned the killing of soldiers, many are indifferent as to the retaliatory attacks by the armed forces on innocent citizens. In other words, Nigerians also feels awkward about military retaliatory attack on innocent citizens.
In Nigeria, it is not the first time the military invaded a community to carry out retaliatory attacks on innocent citizens due to allege killing of colleague(s) and/or other forms of violence. For instance, in 2021, the military invaded Nko community in Yakurr Local Government of Cross River, over the unfounded allegation that a captain of the Nigerian Army was shot dead during a communal clash with her neighboring Onyadama community. Prior to these, Ugep (the headquarters of the aforementioned LGA) was invaded by the Army on December 24, 1975, wherein 13 persons were killed, 100 injured and 7,500 houses razed. Over 45 years later, nothing has been done to assuage the effects of the events on the people.(https://www.vanguardngr.com/2015/12/40-years-after-group-demands-panel-report-on-ugep-massacre/amp/). Needless to mention the 1999 Odi massacre, the 2022 Bodo – Rivers State community invasion, the 2021 Shangev-Tiev, Konshisha Benue State invasion, amongst others.
To the best of my knowledge, there is no law that okays military retaliation on civilians (at best it may be their ritual or custom), it makes messy the whole essence of human rights safeguard, and springs forth the question of military suzerainty in modern day African constitutional democracy. The million naira question is; what is the justification for assaulting, shooting innocents citizens and razing their homes, when common intelligence can tell that the perpetrators must have elope the territory?
In strong terms, this vista condemns the killing of soldiers who gave up their lives in defence of our nation, and advocates that the military should henceforth desist from carrying out any retaliatory attack on innocent citizens. Rather, they – in collaboration with the Nigerian Police Force – should investigate and fish out the offenders for trial before a court of law. It is becoming an unpleasant culture, overlooked and swept under the carpet without serious attention. In other words, this article is of the view that the democratization of military retaliatory attacks on innocent citizens in Nigeria is a threat to human rights and democracy.
Post 2020 Highlights of Military Retaliation in Nigeria
From the records, within 2020 and 2024, the Nigerian Army invaded and carried out retaliatory attacks on civilians in different states across the country, including; Cross River, Benue, Rivers, and Delta States.
In 2021, it was reported that soldiers went missing during a routine patrol after a communal crisis between towns in Konshisha and Oju LGAs. Actually, 72 Special Forces Battalion troops deployed on the Oju side of the boundary and troops of the Battalion were on their way to replenish their colleagues on 5 April 2021, when they were attacked by armed bandits at Bonta in Konshisha. The troops who were under command of a Captain were seized at a checkpoint mounted by the so called “Bonta Boys” and taken into Konshisha forest where they were all brutally murdered. “Not satisfied with killing the soldiers, the bandits proceeded to burn all the eleven soldiers and their officer beyond recognition while their weapons and ammunition were carted away. It was also reported that the bandits used the settlement of the people as hideout and even tracked the soldier’s phones. Hence, the reprisal on the community that saw numerous death and destruction.
In 2022, the military invaded Nko community, in Yakurr Local Government Area, Cross River State in retaliation to alleged killing of one of their officers during a peacekeeping operation in respect of communal clash between Nko and it neighboring Onyadama community. This allegation was unfounded and mere speculations as the people denied shooting or even assaulting a soldier. HumanAngle reported the following casualties; immediate death of one Joy, Eta’s wife due to shock as a result of sporadic gunshots; death of Ikpi who was caught in the bush trying to hide with his 60 years old mother; Ofem Okoi (70) who was burnt alive in his house; houses were razed and burnt down, men, women, youths were beaten mercilessly and whisked away to the barracks, amongst other inhuman events. (See https://humanglemedia.com/the-day-peacekeeping-troops-became-murderous-in-nigerias-cross-river-community/ for more details and pictorial evidence).
In 2022, residents of Bodo community in Gokana Local Government Area, Rivers State were accused of bearing and hoarding arms in their houses. This led to a military invasion by men of the armed forces, wherein so many persons were injured, others beaten and whisked away, including men and women. According to the operation, the task was simply to rid the society of arm-bearing miscreants who daily terminate the lives of innocents.
Few months ago, 17 soldiers were ambushed and killed in the Okuama community of Ughelli South local government area of Delta State which led to a national outcry. The Commanding Officer, 2 Majors, a Captain, and 12 Solders were reported to have been brutalised and murdered in a gruesome manner in course of peacekeeping mission. This was as result of the communal clash between the community and its neighboring Okolaba community. After that, it was allegedly reported that the military mobilized and invaded the community by land and air, arrest citizens, razed homes, amongst others. This event sparked nationwide concern, and the need for a second look at retaliatory attack became expedient.
Foremost human rights activist, Femi Falana, SAN while condemning the killing of the soldiers noted thus;
“ Having regard to the massacre of innocent people when the military invaded Odi in Bayelsa State and Zaki Biam in Benue State in similar circumstances, we commend the military authorities for resisting the temptation to subject the two warring communities to a reprisal attack. “By all means, the army should avoid a repeat of the history of having multiple tragedies.”
The excerpts from the depositions of the legal sage implies that the military should desist from carrying out reprisal attacks on communities, instead investigations should be carried out by the relevant agencies (even with conjunction of the Army). Therefore, it is expedient to underscore the Nigerian Army, other forces and paramilitary as agents of the federal government. This is in a bid to reiterate the overall role of the federal government in cases of military invasions.
The Military as Agent of the Federal Government
Section 217(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that;
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.
Section 130(2) of the Constitution provides that;
‘’The President shall be the Head of State, the Chief Executive of the Federation and Commander-in-Chief of the Armed Forces of the Federation.’’
The Chief of Defence staff, and service Chiefs are appointees of the President, and subject to the directives and orders given by the President. Therefore, it is logical to submit that the federal government acting through the President ought to instruct the armed forces as the commander -in-chief to desist from retaliatory on citizens in any given circumstances, they lack the powers to so do, same having been conspicuously provided for in the Constitution and other extant laws. There are laws and procedures guiding investigations, trials and punishment in our corpus juris Nigeriane.
For purposes of completeness, in the case of All Progressive Congress v. Peoples Democratic Party (2015) LPELR 24349, the Court of Appeal held that the President lacked the power to call on the Armed Forces to restore law and order in any part of the federation without the approval of the National Assembly in accordance with sections 217(2) and 218(4) of the Constitution as amended.
Also, in Femi Falana SAN v. Chief of Army Staff, (Suit No. FHC/L/CS/1939/2019), the Applicant prayed the Federal High Court to stop the Nigerian army from conducting “operation positive identification” exercise which entailed the demand of valid means of identification from Nigerians by military officials across the country. The trial Court, per, Hon. Justice Railwan Aikawa declared the exercise illegal and unconstitutional on the ground that members of the armed forces lack the power to subject civilians to any form of security check outside the North East geopolitical zone where the country is involved in waging a counter-insurgency operation.
However, this decisions are only been observed in breach and manifest non-compliance as the military religiously embark on retaliatory attacks. The attendant effect is always felt by the masses whom the government would not pay compensation when ordered to so do. For instance, the Court awarded the sum of N37.5 billion and N41 billion to the victims of the military invasion that took place in Odi and Zaki Biam massacre respectively, but same have not been complied with, and no epitome of hope towards compliance.
The Law and the Nigerian Army on the Spotlight
To be precise, the Nigerian Army has been the major armed force faced with casualties from unscrupulous group of citizens in Nigeria. It is not uncommon to hear that a soldier was beaten up, or a soldier was shut dead. In consequence, the army has never treated retaliatory attacks on citizens with kid gloves.
Generally, under international law, reprisals are measures of pressure that deviate from the normal rules of international law: they are carried out by a State in response to unlawful acts committed against it by another State and are intended to force that State to comply the law. Reprisals may also be carried out in response to an attack.
It should be noted that when civilians take up arms, they become combatants. Combatants out of uniform are not subject to the protections of the laws of war. Realistically, where a people kills a soldier(s), soldiers immediately reinforce and take siege of the territory in the guise of investigation, and homes may be razed, property destroyed, human rights abused amongst others. This is in flagrant non observance of International Humanitarian Law (IHL) that prohibits all reprisals against civilians and civilian objects, as well as persons and objects protected by the Geneva Conventions of 1949 and their Additional Protocols of 1977. This prohibition is applicable to both international and non international armed conflicts. The prohibition has attained the status of an international customary rule. Reprisals in international law are only legal during armed conflicts, and it must be carried out in response to a previous attack, proportionately, and directed only at combatants/military objectives.
In the Kupreškić case, the international Criminal Tribunal for the former Yugoslavia (ICTY) ruled, condemning the Croatian attack on the civilian Muslim population of Lasva valley. It was held that such attack was not a legitimate retaliation on the earlier attack on Croatian Muslims. The Court recalled the prohibition of deliberate attack on civilians and the general principle prescribing that reasonable care must be taken in attacking military objective to avoid causing unnecessary injury to civilians through carelessness. The Court also ruled that reprisals against civilians are expressly prohibited under conventional and customary international law as long as civilians are in the hands of the adversary. It also recalled that reprisals against civilians and civilian objects in a combat zone are prohibited by article 51(6) and 52(1) of Additional Protocol I of 1977 (para. 527).
In Nuforo v. State (2015) LPELR-25994(CA), Mbaba J.C.A., noted thus;
“We have stated, repeatedly, that no man has right to take another man’s life, even by judicial pronouncement, except as stipulated by law, and that with utmost care and circumspect, to avoid passing death sentence on the innocent, and incur the wrath of God.”
By virtue of section 33 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended);
- Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
- A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary-
(a) for the defence of any person from unlawful violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) for the purpose of suppressing a riot, insurrection or mutiny.
The right to life very sacrosanct, it cannot even be taken by pronouncement of Court, not to say military retaliation/invasion. The military lacks the vires to lay seize of any territory in. Uteri’s by way of retaliatory attack. We are not in a Banana Republic where anything goes. The military cannot constitute itself as an investigator, judge, and executor of judgement. It should desist from self help of assaulting, arresting, razing homes and shooting citizens on retaliation. It should not take life it cannot give. Before anybody became a military officer, he/she was first a human being. Depriving innocent citizens their life runs contrary to the Constitution and international/regional instruments. Military retaliation is not, and can never be an exception to the precious right to life.
Recommendations
The following recommendations are important to prevent military retaliation in Nigeria;
- The President and Commader-in-Chief of the Armed Forced should give a standing order to service Chiefs on the need to desist from carrying out military retaliation. This is because even the President can not order the military to carry out retaliatory attacks on citizens. It is not within the powers of the executive to so do.
- Investigations and interrogations should be carried out once a member of an armed force is assaulted, or killed. The police should be allowed to carry out their constitutional duties of investigation and consequent prosecution of suspects. If the armed forces are not satisfied with the investigation, they can synergies with the police and other security experts to carry out the investigation.
- The National Assembly should amend the Armed Forces Act to expressly prohibit retaliatory attacks on civilians subject to international laws and standard practices. This would readily make any retaliatory attack to be illegal, and the armed forces would gradually desist from same as a ritual or culture.
- The federal government in a bid to actualize the above, should endeavor to revisit all cases and reports of military retaliation in Nigeria, and compensation should be made for those the damages that occurred. This would send a strong signal to the armed forces that the federal government has truly taken a new path on military retaliation.
- Citizens must respect members of the armed forces who have laid their lives to defend the nation. They should be radical crusades and awareness on the need for citizens to refrain from assaulting or ambushing any member of the armed forces. It should be recalled that members of the armed forces are also human beings, and have the right to life no matter their career.
Conclusion
On the whole, the ever alluring role of the military in every society cannot be overemphasized, they form the defence and territorial recognition of Nigeria. Without the military, the country is as good as empty. Let us respect and encourage the sacrifice of our heroes. However, the armed forces should also desist from carrying out retaliatory attacks on civilians. No civilian can stand the armed forces, therefore there is no need to attack them, rather, such energy should be targeted at perpetrators.
Food for thoughts:
‘’When we assumed the Soldier, we did not lay aside the Citizen.’’ George Washington
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