by Orji Agwu Uka
However, in the absence (to my knowledge) of any law or regulation passed by the National Assembly on the deployment of troops to any part of Nigeria for the purposes of maintaining law and order during elections, the President appears to have a carte blanche to deploy such armed forces until the National Assembly determines otherwise.
Background
The recent trend of massive and unprecedented deployment of security agencies, including the armed forces to election states has become the latest source of polarisation of views between supporters of the ruling People’s Democratic Party (“PDP”) and the opposition All Progressive Congress (“APC”). More importantly, it has renewed interest in the vexed issue of the propriety of the exercise by the President, of executive powers under the 1999 Constitution of the Federal Republic of Nigeria as amended (“CFRN 1999”), resulting in the expression of sharply divergent views from legislators, legal practitioners, public affairs analysts and the general public.
Some reports have it that in the Ekiti elections, about 30,000 security personnel were deployed, and in Osun, the number of security personnel was increased to a whopping 70,000! complemented by armoured tanks, helicopters and other military hardware.
While some seek to justify the massive deployment, on grounds inter alia that it curbs election rigging and also ensures that potential breakdown of law and order is contained, others base their opposition to the deployment on reasons ranging from the use of the military to intimidate the electorate, to the blatantly partisan arrest of key members of the opposition to cow them (case in point is the alleged blockade of opposition Governors and refusing them assess to Ekiti State). Furthermore, neutrals (if they indeed exist) simply wonder the rationale behind such deployment of scarce men and resources of the armed forces for the sake of elections in the face of the threat of the terror ravaging the North Eastern part of the country.
The issue came to the fore during a debate by the House of Representatives last month on the proposed amendment of the Electoral Act of 2010 and the question of the legality or otherwise of the President’s deployment of the military during elections threw up so much dust that it almost brought plenary to a halt.
Whilst it will take a different treatise to do justice to the merits and demerits of both views, the purview of this piece is to simply provide a dispassionate rendition of the position of the law on this issue. In what follows below, an attempt will be made to lend a voice to the conversation by examining the dry letters of the relevant laws to determine whether or not the President acted intra vires his powers. Simply put, the piece seeks to answer the question whether or not it is legal to deploy armed forces to election states? If the answer to the above is in the affirmative, what is the condition (if any) that must be fulfilled before deployment of the armed forces. As tempting as it is to do otherwise, I shall restrict the scope of this discuss to the above purview. Before then however, as is my wont, I shall begin by offering a brief explanation of some requisite constitutional principles to enable a coherent rendition of this discuss.
There are a number of fundamental doctrinal principles that run through the jurisprudence of most constitutional democracies, for which there are hardly any departures, the most important of which are the principle of supremacy of the constitution and the doctrine of principle of separation of powers.
Supremacy of the Constitution
The principle of constitutional supremacy is clearly provided for under Section 1(1) & (3) CFRN 1999 as follows
(1) This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.
(2) …
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
The combined effect of the above provisions is that all authorities and persons within the Nigerian territorial and legal jurisdiction are subject to, and are indeed bound to exercise such powers and enjoy such rights only as expressly entrenched in the constitution. Furthermore, all laws – from the Acts of the National Assembly to subsidiary legislations and bye laws of the local governments – must conform to the letters and spirit of the constitution. Consequently any law, notwithstanding the law making entity, that is inconsistent with the constitution, shall to the extent of the inconsistency, be void and liable to be so declared by the courts.
Separation of Powers
The doctrine of separation of powers on its part can be simply described as the horizontal delineation of powers among the three arms of government, the Legislative, Executive and Judicial arms of government such that each arm performs only the duties allocated to it by the constitution as an attribute of the constitutional supremacy. Accordingly, the CFRN 1999 in Section 4 assigns law making powers to the legislative arm of government while the executive arm in Section 5 is vested with the powers to execute and maintain the laws duly made by the legislature. The Judiciary on its part is empowered in Section 6 to interpret the laws and in the event of disputes as to the legality of the law and/or the execution of same, the Judiciary settles such conflicts.
The Nature of Presidential Powers under the 1999 Constitution
It is pertinent to also consider the nature of presidential powers under our Constitution, to ascertain what quantity of power the President does possess under the CFRN and more importantly, whether the President is deploying his power justly or unjustly?
The executive powers of the President under the CFRN 1999 are provided for under section 5(1) CFRN 1999 while the equivalent and corresponding powers of the governors of the respective states are provided for under Section 5(2) CFRN 1999. The said section 5(1) provides as follows:
5(1) Subject to the provisions of this Constitution, the executive powers of the Federation:
(a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and
(b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
Under the above provisions, the executive powers of the Federation are vested in the President who may exercise them directly or indirectly through his Vice President and Ministers of the Government of the Federation or through other officers in the public service of the Federation. Furthermore, by virtue of paragraph (b) above, the executive powers vested in the President extend to:
the execution and maintenance of the constitution of Nigeria;
the execution and maintenance of all the valid laws made by the National Assembly; and
the execution and maintenance of all matters with respect to which the National Assembly has, for the time being, power to make laws.
The purport and import of the above provisions is that the President has powers to execute and maintain the constitution as well as all the valid laws made by the National Assembly. A corollary of this therefore is that once the National Assembly has passed a law, then with or without a specific provision in that regard, it is the responsibility of the President to execute such laws. More importantly too, even where the National Assembly has not made a specific law on a subject matter, the President nevertheless has powers to execute and maintain such matters in so far as such are matters with respect to which the National Assembly has powers, for the time being to make laws. For a more in-depth appreciation of the extent and limits of the executive powers of the President under a constitutional democracy, please make out time to consult the book, Presidential Constitution of Nigeria C. Hurst & Co. London 1982 by the renowned constitutional law expert in Africa, Professor Ben Nwabueze, SAN.
Establishment and Functions of the Armed Forces of the Nigeria
Section 217 CFRN 1999 establishes the Armed Forces of the Nigeria and also provides for their functions in the following words:
217. (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.
(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.
After establishing the armed forces and providing for their functions, the constitution in Section 218 then proceeds to provide in line with the principle of separation of powers as follows:
(1) The powers of the President as the Commissioner-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) …
(3) …
(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…
One key phrase from the above provision that does not lend itself to an easy understanding is the phrase “the operational use of the armed forces of the Federation.” Thankfully, the Armed Forces Act, Laws of the Federation of Nigeria provides its meaning in Section 8 in the following words:
(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) …
(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.
From a reading of the above provisions, three things suggest themselves. One, the function of the Armed Forces appears to be twofold: the primary function of defending Nigeria from external aggression and maintaining its territorial integrity and securing its borders from violation on land, sea, or air on one hand and the secondary function of suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President on the other hand. It is instructive to note that the words employed by the constitution regarding the secondary duty of the armed forces are to suppress [not prevent] insurrection and to act in aid of civil authorities (e.g. the police) to restore [and not to prevent] the break down of law and order.
Two, while the President as the Commissioner-in-Chief of the Armed Forces of the Federation has the powers to determine the operational use of the Armed Forces of the Federation, the National Assembly has the corresponding power to make laws for the regulation of such powers exercisable by the President.
Three, while the constitution gives the Armed Forces the secondary responsibility of suppressing insurrection and acting in aid of civil authorities to restore order when called upon to do so by the President, the Armed Forces Act has by its definition of the phrase operational use purported to enlarge the scope to include the operational use of the Armed Forces in Nigeria for the purpose of maintaining and securing public safety and public order. And unlike the constitution, the Armed Forces Act contains no provision empowering the National Assembly to regulate the exercise of the powers of the President in deploying the Armed Forces for operational purposes.
In line with the constitutional principles of supremacy of the constitution and separation of powers earlier highlighted, this work sums up that the functions of the armed forces inclusive of their operational use shall be only to the extent provided by the constitution. Furthermore, the powers of the National Assembly to make regulations for the exercise of the powers of the President in deploying the Armed Forces for operational purposes expressly granted by the constitution cannot be taken away by the Armed Forces Act. Consequently, the Armed Forces Act to the extent that it purports to do so is inconsistent with the constitution and is to the extent of that inconsistency, null and void.
However, in the absence (to my knowledge) of any law or regulation passed by the National Assembly on the deployment of troops to any part of Nigeria for the purposes of maintaining law and order during elections, the President appears to have a carte blanche to deploy such armed forces until the National Assembly determines otherwise.
With the next port of call likely to be the October 11, 2014 gubernatorial polls in Adamawa State (all things being equal), and the sub-plots already playing out, one can only wonder whether the National Assembly can pass such a regulation.
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Orji Uka is a legal practitioner with one of the biggest law firms in Africa and has been in dispute resolution practice since his call to bar in 2012. Orji attended Abia State University, Uturu Nigeria where he obtained a LL.B (Hons) degree in 2010. He tweets from @Orjiuka
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
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