Former President Olusegun Obasanjo started it all in 2003. President Goodluck Jonathan has caught the bug of deploying soldiers for elections, despite its unconstitutionality. He did it in Ekiti State on June 21. He plans to do it again in Osun on Saturday. Is he right? No, say lawyers. Eric Ikhilae reports.
Election is a civic duty, which the electorate are expected to perform freely. They are expected to exercise their franchise in a peaceful atmosphere, devoid of intimidation and show of force.
Election is not a war, warranting troops’ deployment. At most, the police are deployed to ensure orderliness. This is the practice in other democracies.
But here, the deployment of troops for election by the Federal Government is gradually becoming the norm, the unconstitutionality of the practice.
The practice, which was introduced by former President Olusegun Obasanjo in 2003, who was once quoted as saying that election is “a do-or-die” affair, is gradually becoming a state policy under President Goodluck Jonathan.
This practice reached a worrisome height during the June 21 Ekiti State governorship election when troops, military hardware, arms and ammunition were deployed. The soldiers paraded the streets in a manner intended to intimidate voters and paint a picture of insecurity and looming danger.
About 36,790 armed soldiers, police, State Security Service and civil defence personnel were reportedly deployed for the Ekiti election. Many relived how soldiers allegedly interfered in the electoral process.
Rivers State Governor Rotimi Amaechi’s right to freedom of movement enshrined in Section 41 of the Constitution was breached by the armed soldiers when he was prevented from entering Ekiti two days before the election.
The governor and many other leaders of the All Progressives Congress (APC), who were billed to attend a political rally at Ado Ekiti last June 19, were forcefully turned back by the soldiers who claimed they were acting on “orders from above.”
There were also reports that armed soldiers searched every hotel in Ado Ekiti, the state capital at night, without warrant and ejected mostly members of the APC, who they claimed could not offer “satisfactory explanation” as to why they were in the state.
The same soldiers provided cover for some non-indigenes, who are chieftains of the Peoples Democratic Party (PDP) including two serving ministers and an influential chieftain of the party from Anambra State, who were allowed to “monitor” the election.
There were also tales of unwarranted killings and displacement during the election. But while many thought the Jonathan government would have learnt from unsavoury experience brought about by the unwarranted deployment of soldiers in Ekiti, it is bent on doing the same thing in Osun State, where governorship election holds on Saturday.
To observers Jonathan, who the soldiers allegedly was in Osogbo, the state capital, last Saturday to campaign for Iyiola Omisore, the candidate of the party, Peoples Democratic Party (PDP) hinted that soldiers may be deployed for the election. Militarising election process does not only serve as a disincentive to voters, it is a form of rigging because innocent voters are scared away and their right to vote denied.
They argued that such practice gives the international society a bad impression about the country, creating the impression of insecurity and painting the people as being incapable of managing their affairs.
The unconstitutionality of the President’s capricious deployment of soldiers for election duties, critics argued, is supported by the provisions of sections 217 (1) and (2) (a-d) and 218 (4)(a-b).
Section 217(1) states that “There shall be and 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.
It states in Sub-section 2 that “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) performance such other functions as may be prescribed by an Act of the National Assembly.
But while Section 218 (1) states that “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,” the Constitution, in Sub-section 4 (a) and (b) of Section 218 states that “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; and (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.”
Observers argue that, in view of the unconstitutionality of the President’s casual deployment of men of the armed forces in the absence of the situation envisaged in Section 217(2)(a-c) of the Constitution, there is urgent need for well-meaning Nigerians to seek ways of halting this unconstitutional use of the armed forces by the President.
This purpose may equally be served by a Bill now before the National Assembly that seek to review the deployment of armed forces for election duties.
Titled: “A Bill for an Act to further amend the Electoral Act, No. 6, 2010,” sponsored by Hon. Daniel Reyenieju (PDP, Delta), it seeks among others to ensure a level playing field for all participants in the electoral process and for transparent process of conducting elections in the country, and for other matters connected therewith.
A major contentious part of the Bill is contained in its proposed Section 8, which seeks to further amend the Principal Act in Section 29(1) by inserting a new subsection (b).
The new subsection “b” seeks to ensure that INEC is “responsible for requesting and deploying security personnel necessary for elections or registration of voters; assigning them in the manner determined by the Commission in collaboration with relevant security agencies, with the condition that the deployment of the Nigerian Armed Forces shall only be for the purpose of securing the distribution and delivery of election materials”.
If passed into law, this amendment may likely stop the President’s casual deployment of members of the armed forces for election duties. It is however not sure if the proposal will not exacerbate the already bad situation as there is no guarantee that INEC, a federal establishment will not succumb under the pressure from the party at the centre.
Lawyers, including rights activist, Femi Falana (SAN), Joseph Nwobike (SAN), Emeka Ngige (SAN), Wahab Shittu, Ike Ofuokwu and former Chairman of the Nigerian Bar Association (NBA), Ikeja, Monday Ubani are also of the view that the needless deployment of men of the armed forces for election duties amounts to a negation of the provisions of the Constitution.
Falana argued that the deployment of the armed forces for the maintenance of law and order during elections cannot be legally justified in view of the provision in Section 215(3) of the Constitution, which vested the Police with the exclusive power to maintain and secure public safety and public order in the country.
He relied on the Court of Appeal decisions in the cases of Yussuf v Obasanjo (2005) 18 N.W.L.R. (Pt 956) 96 and Buhari v Obasanjo (2005) 1 WRN 1 at 200.
Then President of the Court of Appeal, Justice Umaru Abdullahi observed 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”.
The Supreme Court, in upholding the judgment in the Buhari v Obasanjo case, held that the state is obligated to ensure that “citizens who are sovereign can exercise their franchise freely, unmolested and undisturbed”.
Falana argued that “under the current constitutional dispensation the President and Commander-in-Chief of the armed forces lacks the power to involve soldiers in maintaining law and order during elections.”
He noted that even in the Northeast states, 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 said.
Nwobike, while addressing the deployment of armed and hooded security personnel to Osun, preparatory to the August 9 election, argued that such deployment will create tension because the state is not known to be prone to violence.
“There are no security challenges in Osun State as to warrant the deployment of massive security operatives into the state few days before the scheduled election.
“Osun is relatively a small and peaceful state. Therefore, the only inference that can be drawn from the deployment of massive security personnel into the state is that those who are responsible for that deployment intend to heat up the polity and aggravate the political tension in the state.
“I, however, call on the electorate to go about their business and to come out en masse to vote for the candidate and political party of their choice.
“They should not allow themselves to be intimidated by the presence of security personnel,” he said.
Ngige, said the security personnel should rather have been deployed to the Sambisa Forest, known as the notorious den of insurgents in the Northeast.
“The militarisation of our democracy will do nobody, including the presidency, any good. People should be allowed to express their political wishes without fear of intimidation.
“The deployment of high number of military personnel in an election is suggestive that we’re in a civilian rule, not democratic rule.
“The soldiers and state security personnel they’re deploying in Osun are better needed in Sambisa forest and Borno and Yobe states, not for a peaceful state like Osun,” Ngige said.
Shittu was of the view that the massive deployment of armed security personnel could send a wrong signal that Nigeria is incapable of conducting a peaceful election.
He warned against militarising Osun in the name of ensuring a peaceful election, adding that voters could be disenfranchised by such massive show of force.
“While there is a necessity to guarantee peaceful, fair and credible election, we should be careful not to militarise the polity. That could constitute a danger to the democratic process.
“There are various ways of disenfranchising eligible voters. We should not give the impression to the international community and the rest of the world that we’re incapable of conducting a free, fair and credible election except the entire place is militarised,” Shittu said.
Ofuokwu faulted the deployment of heavily armed security men for the Osun election
“They have no bravery to display but instead what they have is cowardice clouded with professional timidity. Any bravery should be channelled to the Sambisa forest to rescue our girls. It shocks the conscience to hear that they are even hooded hence we must be sure that they are not armed robbers or even terrorists. Officials of DSS have no single justification being hooded.
“The people of the state should not be intimated with their presence but go about their lawful duty & on election day come out en masse to vote candidates of their choice, he said.
Ubani particularly faulted the conduct of the SSS men deployed to Osun.
“This is clearly a strange development. SSS men wearing masks and shooting into the air indiscriminately is scaring and irresponsible. Why the entire thing seems scaring is the idea of wearing masks.
“You may want to know why and what they are trying to hide their faces for? It is obvious that their intention and motive is less altruistic and patriotic hence operating in masks.
“My advice is that the political elite in collaboration with the security establishment should not truncate this hard won democracy even if what we have is not a full fledged democracy. “The people of Osun should be given a free hand to choose their governor free from pressure, intimidation and threats from any quarter. What constitutes free and fair election includes the events prior to the election date, the election proper and during the announcement of the election results.
“If there are issues and deficiencies in any of these segments as mentioned then the election cannot be said to be free and fair in accordance with the Electoral Act.
“Our political class should know that the entire world are keenly observing what is going on in our country. Our actions and deeds will either enhance our value in the eyes of the world or attract opprobrium from the same world. A word is enough for the wise,” Ubani said.
