Chief Mike Ozekhome SAN
The last two weeks saw us discussing the constitutionality or otherwise of the president deploying the military during elections. My humble intervention is that he cannot, should not and must not do so.
Our rabidly partisan military cannot longer play the role of an unbiased umpire. They should stay within their constitutional roles, man borders, put down external aggression and only come in to aid civil authorities and supress internal insurrection that overwhelms the normal Police Force.
And this, usually happened when properly empowered and called upon soto do, under the Constitution.
This involves deployment of Armed Forces as in Boko Haram insurgency, in which the NASS plays a critical role. Let’s now conclude this three part serial.
Under both Section 218(3) of the Constitution, and Section 8 (1-2) of the Armed Forces Act, the law is that the President shall have power to deploy the armed forces for operational use.
It goes further to state that the President shall have power to delegate the power to deploy armed forces for operational use to either the Chief of Defence Staff, Chief of Army Staff, the Chief of Naval Staff and that of the Air Force Staff as the case may be. This provision is echoed mutatis mutandis, by Section 8(3) of the Armed Forces Act.
Section 8 (3) of the Armed Forces Act, defines what is meant by the operational use of the armed forces. It includes provision of aid to civil power. It provides:
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.
The Court of Appeal in the case ofALL PROGRESSIVES CONGRESS v. PEOPLES DEMOCRATIC PARTY & ORS (Supra) in referring to Section 217 (2) (c) stated emphatically, that the President can indeed, deploy military to quell insurrection in accordance with the section, subject to the condition which MAY be prescribed by an Act the National Assembly.
However, the Court, coram Aboki, JCA, made it clear that such deployment shall not cover the electoral process or the conduct of elections. Hear the intermediate court through Abdul Aboki, JCA:
“Of course, Section 217(2) (c) is what the Armed Forces Act is all about and the provisions therein can further be enriched or amended by further Acts of the National Assembly.
See Section 217 (2) of the 1999 Constitution, and Section 1 of the Armed Forces Act, which elaborates on the functions, command structure and activities of the Armed Forces.
None of the above mentioned functions has anything to do with Electoral process and the Conduct of elections in the Country to select political leaders, Even the item (2) (c) which talk about “suppression of insurrection and acting in aid of civil authorities to restore order when called upon to do so by the president, appears to be applicable only in the event of insurrection, to restore order and, even then, the Military must be invited by the President, upon fulfilment of specified conditions, prescribed by an Act of the National Assembly.
Thus, even the president of Nigeria has no powers to call out the Armed Forces and unleash them (Military Officers) on a peaceful citizenry who are exercising their franchise to elect their leaders.
And even in the event of insurrection or insurgency, the call on the Armed Forces to aid civil authorities to restore order, must be with the approval of the National Assembly which must provide conditions as specified in Sections 217 (2) and 218 (4) of the 1999 Constitution, (as amended).”
What section 217 (2) (c) really provides for as can be seen from the provisions of the section above, is not necessarily that the President cannot deploy the military in aid of civil authorities, but that he cannot do so to terrorise peaceful citizenry exercising their franchise to elect their leaders.
Not only that, he can do so ONLYwhen an Act of the National Assembly so prescribes. For emphasis, the section is replicated below:
(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 –
(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
First, Section 8 (1-2) of the Armed Forces Act which is an Act of the National Assembly, provides as follows:
(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
(d) 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.
As can be seen above, the President (or his delegates, ie, Armed Forces), surely has power (subject to conditions prescribed by the NASS),todeploy the military in aid of civil authorities under the Armed Forces Act, when called upon to do so, to quell insurrection.
But, not for election purposes. This is moreso, since the word expressly used in theSection 217(2) (c) of the Constitution is “MAY”. It is trite law that the “may” is used in a statute, it conveys permissiveness and not mandatory.
The Black’s Law Dictionary, Seventh Edition at page 993, states that, where the word ‘MAY’ is used in a legislation in its primary legal sense, it is permissive or discretionary.
In the case of EDEWOR V. UWEGBA & ORS.(1987) LPELR-1009(SC), the Supreme Court, defining the word “may”, held as follows:
Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression.
In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH.D 282.
Going by the above authorities, it is fervently submitted, that the phraseology employed by Section 217(2) of the Constitution, is to the effect that the President as Commander –In-Chief of the Armed Forces can only deploy such in “suppression of insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, but subject to such contributions as may be prescribed by an Act of the National Assembly”.
This section never gave the President powers to populate Nigerian streets with the military, especially the Army, as if they were the usual Police or Civil Defence Corps.
The military have always been quarantined in their barracks, save when they go to war, or when called upon to the streets to suppress insurrection. To see Army personnel on the streets before and after the civil war was a rare sight in those days.
This was usually during peaceful street parades and processions to demonstrate their prowess. This was watched with awe by the populace, peeping through their windows.
The Army would sing, march and gyrate along streets to the admiration and awe of the civilian populace.
It is different from the present day Army that wrestles with politicians, unarmed civil protesters and opposition, right inside the mud and gutters. That demeans itand degrades its importance and rating.
Sifting from my above analysis, my new belief, (as against my 2015 innocent opinion), is that taking cognisance of the partisan and highly politicised use of the military after the just concluded elections,the president CANNOT AND DOES NOTconstitutionally, legally and morally, have the power to deploy the military during elections for electoral purposes.
His deployment of the military can only be to aid civil authorities, when called upon to do so; to nip in the bud, cases of insurrection;and to restore law and order.
Their primary duty remains defending Nigeria’s territorial integrity, and securing Nigeria’s borders from violation, whether by land, sea and air. These are the exact words of section 217 of the Constitution.
Consequently, I end this three-part humble intervention with the conclusion that the military should never again be deployed, nor be found near, present at,or around polling booths or polling units during elections.
These are functions and duties exclusively preserved for the usual Police Force and Civil Defence operatives.
But, Military Personnel may be deployed to man all borders, whether air, land and sea, before, during and after elections, to prevent infiltration of aliens who may be imported by politicians to come and participate in our electoral process.
They should never be found on the streets terrorising voters who desire to exercise their civil obligation of voting for candidates of their choice.
The ugly visibility of the military, especially the Army, during the last elections, as seen in numerous viral videos, aiding politicians and political thugs to decimate opponents, snatch ballot boxes, invade citizens’ homes and forcefully and partisanly preventing citizens from voting, and allowing preferred party representatives in to the collation centres to the exclusion of others, leave a sour taste in the mouth.
These shameful acts cast us in the mould of uncivilised people, coming straight from the stone age of Earlycave man and Australopithecus. It must never repeat itself. We are not a banana Republic. We are supposed to be the biggest black democracy in the world.
We must live up to expectation of best international practices in our electoral process.
We did it in 1993, when Nigerians beheld the freest, fairest, most credible and most transparent elections ever witnessed in Nigeria. Most of the other elections after that have been a sham, or at best, below average