Lagos lawyer Mr. Femi Falana (SAN) has said it is illegal and ultra vires on the part of President Goodluck Jonathan to deploy the armed forces to maintain law and order during elections.
Falana, in a statement yesterday, titled: “Illegal involvement of soldiers in election duties,” said sections 215 and 217 of the constitution are abundantly clear that the power of the President to deploy armed forces for internal security is limited to the suppression of insurrection, including insurgency and aiding the police to restore order when it has broken down.
Rather than use soldiers during elections, he advised that the police should be strengthened to discharge the duty of ensuring internal security while the armed forces are restricted to the defence of the nation’s territorial integrity.
He said under the current constitutional dispensation, the President and Commander-in-Chief of the armed lacks the power to involve soldiers in maintaining law and order during elections.
“Even in the Northeast region, a state of emergency had to be declared by the President to justify the deployment of members of the armed forces as part of the extraordinary measures he was required to take to restore law and order pursuant to section 305 of the Constitution.
“Even then, the President had to seek and obtain the approval of the National Assembly for the said deployment for a specific period of time,” he stated.
Falana described as “misleading apologia for the militarisation of the recent governorship election in Ekiti State”, an article by Bashorun Akin Osuntokun on “Militarisation and other fallacies” published in his weekly column in Thisday newspaper of Friday, July 11, 2014.
According to him, Osuntokun, in commending the soldiers for displaying professionalism, “was curiously silent on the infringement of the fundamental right of Governor Rotimi Amaechi’s freedom of movement, which occurred at Iju-Itagbolu in Ondo State, contrary to Section 41 of the Constitution.
“The governor, who was billed to attend a political rally at Ado-Ekiti on June 19, 2014, was crudely turned back by the soldiers who claimed that they were acting on “orders from above.
“Mr. Osuntokun was equally silent on the illegal curfew imposed on Ekiti State by the army. Or was any curfew declared by the relevant authorities that was not announced? A client, Mr. Bayo Fajimi, who was going home from Akure, Ondo State ( his place of residence), was disenfranchised as he was prevented by the soldiers from entering Ekiti State at 6.30 pm on June 20 because of the illegal curfew! Is the Bashorun not aware that the soldiers 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 Amaechi and others suspected to be All Progressives Congress members were harassed and expelled from the state by the army, some non-indigenes who are 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 gendarmes.
“Even though the Bashorun admitted that he was “struck and inconvenienced by the rigour and saturation of the security blanket” on account of repeated security check-points, he dismissed the complaints of the militarisation of the election. As far as he is concerned, the United States Embassy had endorsed the militarisation by issuing a statement to the effect that, “the security forces collaborated effectively and provided a safe and secure environment free of major incidents”.
He added that Bashorun Osuntokun claimed that the soldiers displayed civility as they were “neither intrusive nor threatening”.
Falana, however, pointed out that the Americans, who issued the statement, do not involve armed troops in the management of their own elections.
He added that the soldiers drafted to his community at Ilawe-Ekiti constituted themselves into an army of occupation.
“Apart from assaulting individuals without any justification, they beat up a policeman on June 20, which led to a violent clash between the police and the army. As a result of the pandemonium which ensued, the main market in the town was abruptly closed down. I personally witnessed the brutality exhibited by the rampaging troops. I have other reports of human rights abuses committed in other parts of Ekiti State by those armed soldiers who usurped police duties of maintaining law and order before and after the election”, he said.
He pointed out that with what he witnessed during the election, there was no role that the soldiers played that the mobile section of the Nigeria Police Force could not have played even better, adding: “Or when has the manning of road blocks become a military affair?”
According to him, the three criminal elements, who were caught with a lorry load of ballot papers before the election were arrested by the police.
“With the figure of 36,790 armed soldiers, police, state security service and civil defence personnel deployed for the Ekiti election, not less than one million armed troops will be required for the 2015 election.
“Since the Federal Government cannot possibly mobilise that number of troops, the United Nations may be requested to send a Peace Keeping Force for the militarisation of the entire country during the general election.
Falana recalled that when former President Obasanjo deployed the army during the 2003 general elections, over 200 people were killed by the security forces.
He said the courts have consistently enjoined the Federal Government to desist from involving the armed forces in the conduct of elections.
He cited several court judgments to back his claim that it is illegal to deploy soldiers for elections, including a lead judgment of the Court of Appeal in Yussuf v Obasanjo (2005) 18 N.W.L.R. (Pt 956) 96. Salami JCA (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 militarised. 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.”
He maintained therefore that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified in view of Section 215(3) of the Constitution which has vested the police with the exclusive power to maintain and secure public safety and public order in the country.
He said the President is only empowered by virtue of 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”.
The Senior Advocate said 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, according to him, 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.
