The Court of Appeal has held that it is illegal for the president to deploy soldiers for elections. The All Progressives Congress (APC) has written President Goodluck Jonathan, asking him to comply with the order. But will he? Lawyers advise the president not to do anything that will portray his administration as lawless. JOSEPH JIBUEZE sought their views.
if Nigeria was a country where the rule of law guides government’s actions, there would be no debate as to whether a judgment would be obeyed. In other countries, compliance with court verdicts is a given because it has become a way of life.
One issue that is generating heated debate now is whether soldiers should be deployed for the general elections. The courts have held that it would be illegal to do so. Ordinarily, the matter should end there. Yet, there are doubts that the Federal Government will obey the judgment during the March 28 and April 11 elections.
Concerned that court judgments are usually treated with levity, the All Progressives Congress (APC) wrote President Goodluck Jonathan, insisting that the military should be excluded from direct election duties.
The party’s letter came after Independent National Electoral Commission (INEC) chairman Prof Attahiru Jega spoke about the elections vis-a-vis security at the National Assembly last week.
Jega said: “I keep saying consistently that INEC is not a security organisation. We are an election management body, so we rely a lot on security to be able to ensure that things are done well and that there is no disruption of the electoral process.
“We have been working very closely with the inter-agencies consultative committee on election security and that is why for us, if the Service Chiefs say that ‘we can’t guarantee security, give us more time’, what is the alternative security arrangements?”
In its February 16 letter, APC drew Jonathan’s and the INEC’s attention to the January 29 judgment of Justice R.M. Aikawa of the Federal High Court, Sokoto and the February 16 decision of the Court of Appeal, Abuja, which outlawed the President’s unilateral deployment of soldiers for the June 21, 2014 Ekiti State governorship election. It urged them to obey both decisions.
In the letter signed by the Director, Legal, APC Presidential Campaign Council, Chukwuma-Machukwu Ume (SAN), the party argued that by virtue of both decisions, it had become illegal for the President and INEC to involve members of the armed forces in electoral matters without the National Assembly’s permission.
What the courts said
Justice Aikawa restrained the President and INEC “from engaging the service of the Nigerian Armed Forces in the security supervision of elections in any manner whatsoever in any part of Nigeria, without an Act of the National Assembly.”
Justice Abdul Aboki , in his lead judgment in the Ekiti State Governorship Election appeal delivered on February 16, held that “even the President of Nigeria has no powers to call on the Nigerian Armed Forces and to unleash them on peaceful citizens, who are exercising their franchise to elect their leaders.
“Whoever unleashed soldiers on Ekiti State disturbed the peace of the election on June 21, 2014; acted in flagrant breach of the Constitution and flouted the provisions of the Electoral Act, which required an enabling environment by civil authorities in the conduct of elections.”
Section 215 of the 1999 Constitution makes the maintenance of internal security, including law and order during elections, the exclusive responsibility of the police.
According to Lagos lawyer Mr Femi Falana (SAN), it is erroneous for Prof Jega to say that only the military could guarantee security during the elections.
To him, once INEC has discharged its constitutional duty of fixing election dates, the onus is on the police to provide security and maintain law and order.
Falana recalled that the courts have consistently enjoined the Federal Government to desist from involving the armed forces in elections.
He cited the leading judgment of the Court of Appeal in Yussuf v Obasanjo (2005) 18 NWLR (PT 956) 96, which the court held: “It is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious step or steps should be taken to civilianize the polity to ensure the survival and sustenance of democracy.”
The court, Falana said, reiterated its views in the case of Buhari v Obasanjo (2005) 1 WRN 1 at 200 when it stated: “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. “
Upholding the judgment, the Supreme Court stated in Buhari v Obasanjo (2005) 50 WRN 1 at 313 that the state is obligated to ensure that “citizens who are sovereign can exercise their franchise freely, unmolested and undisturbed.”
Falana said going by the verdicts, Prof Jega should ensure that INEC is not further blackmail by the military hierarchy.
“On their own part, the National Security Adviser (NSA) and the Service Chiefs should desist from usurping the constitutional responsibility of the INEC and the Nigeria Police Force,” Falana added.
PDP’s position
The Director of Media and Publicity of the PDP Presidential Campaign Organisation, Chief Femi Fani-Kayode, insisted that soldiers must be deployed in order to avert killings during the elections.
He said: “The PDP Presidential Campaign Organisation hereby declares unequivocally that the sordid killing of youth corpers or anyone else must not be repeated in the forthcoming general elections.It is for this reason that the Federal Government must deploy soldiers to ensure peace, stability and security during and after the elections.
“The attempt by the APC to discredit the use of soldiers by promoting some misleading audio footage of the so-called rigging during the Ekiti governorship election, in which one Capt. Sagir Koli was the dramatis personae, is childish and absurd.
“The Federal Government deployed soldiers in the Anambra, Edo, Ondo, Ekiti and Osun governorship elections and all those elections were devoid of violence. Remarkably, the APC won in Edo and Osun; APGA won in Anambra, Labour Party won in Ondo while the PDP won only in Ekiti State.”
He alleged that the basis on which the APC was agitating for the exclusion of soldiers from the election by sponsoring court cases was patently dubious and untenable.
Fani-Kayode said: “The reason that the APC and its leaders do not want soldiers deployed is to be able to intimidate voters and unleash violence on the polity once they lose the elections. They know that it would be far more difficult for them to do that when soldiers are on the streets.”
Asked if the President would disobey the judgment, Fani-Kayode said: “The President is a law-abiding citizen. I know this government will not work against the judgement. We are a law-abiding government, moreover, I will suggest that we allow the Attorney General of the Federation to speak on the matter.”
Will the Federal Government obey?
The Federal Government and the ruling party have, in several instances, been accused of lawlessness. To some observers, the Jonathan administration has demonstrated that it has little regard for the rule of law, the Constitution and even the courts; therefore, it will come as no surprise if the judgments are defied.
For instance, after the Court of Appeal ordered the re-instatement of PDP National Secretary Olagunsoye Oyinlola, rather than obeying the order, the party suspended him. Many saw this as a deliberate ploy to circumvent the judgment.
The presidency was also accused of being in tacit support of the assault of judges in Ekiti State which prevented the hearing of the eligibility case against Governor Ayo Fayose prior to his swearing in.
The presidency and the party, observers say, did not condemn what many believe is a blatant act of lawlessness when seven Ekiti lawmakers in the 26-member assembly, joined by three persons whose identities were allegedly unknown, “impeached” the Speaker.
Last year, House of Representatives Speaker Aminu Tambuwal asked a Federal High Court in Abuja to summon the Inspector-General of Police, Mr. Suleiman Abba, to explain why he should not be jailed for disobeying the court’s order.
Tambuwal accused Abba of consistently disobeying the court order made on November 7, 2014, which directed parties to maintain status quo in his suit filed to stop his removal.
The Speaker said Abba, in further disrespect of the order, appeared before the House of Representatives Committee on Police Affairs on November 26 and told the members that he would not recognise Tambuwal as the Speaker.
Is the military non-partisan?
The military is supposed to be constitutionally apolitical, but recent developments tend to suggest otherwise.
Those who oppose deployment of soldiers during elections cite the allegations that army officials were used to rig the last Ekiti governorship election, won by the PDP. It was alleged that PDP chiefs gave directives to the military to favour the party.
A Senior Advocate of Nigeria (SAN), Chief Emeka Ngige, said soldiers are now being deployed to assist the ruling party and its affiliate parties during elections.
He recalled that during the 2010 governorship election in Anambra State, soldiers allegedly worked for the interest of the All Progressives Grand Alliance (APGA) candidate who is now in PDP.
According to him, an army chief from the hometown of the APGA candidate was the commander in charge of security for the Anaocha local government area. With his presence, the agents of the opposition party were arrested, severely beaten and kept in police custody till after the election.
The SAN alleged that APGA had a field day during the election, and when a complaint was lodged with the army authorities at Onitsha, nothing was done. The same scenario, Ngige said, repeated itself in 2011 elections in Anambra State.
Regarding the audio tape of the alleged conspiracy to rig the 2014 Ekiti governorship election, Ngige said it was instructive that the military authorities have not issued any official statement on the scandal.
“That tells you how the professionalism in the armed forces has deteriorated in the last 16 years by the meddlesomeness of the civilians in government,” Ngige said.
Some have also questioned the army’s sincerity regarding the APC Presidential candidate General Muhammadu Buhari’s certificate issue.
Initially, the Army claimed that it does not keep originals of certificates of service men in their files but photocopies, and that Gen. Buhari was free to apply to get copies of his certificates in his file. But the army later claimed that neither the original nor photocopies of Buhari’s certificates were in the file. According to Ngige, the belief is that the army apparently took the latter stance to portray the General as having been enlisted in the Army without a qualifying certificate.
“A truly professional and non-partisan Army would not indulge in that type of double speaks,” he said.
Many called for the service chiefs’ heads after Prof Jega attributed the general elections postponement to their inability to guarantee security.
To many observers, the service chiefs were merely doing the presidency and the ruling party’s bidding, despite their denials.
“Clearly this attitude portray the service chiefs as working for the interest of the political party that had clamoured and wanted a postponement to enhance its chances in the election,” Ngige said.
Other lawyers speak
Mr George Oguntade (SAN) said the fact that deployment of soldiers for elections duties has become a debatable point was very worrisome.
“I do not know of any democratic country that is not at war where elections been accompanied by the deployment of soldiers and cannot comprehend why Nigeria has to be any different.
The roles of the Nigerian Police Force and the Nigerian Army are specifically spelt out in the Constitution and it is manifestly clear that it is the Nigerian Police Force that is charged with the responsibility of providing the required security and ensuring the maintenance of peace and order during elections.
“There cannot, therefore, be any justification for the usurpation of this role by the Army. Military deployment will only serve to create unnecessary tension and an atmosphere of fear that may prevent a substantial number of the electorate from coming out to vote,” Oguntade said.
For Mr Jibrin Okutepa (SAN), soldiers have no business superintending or supervising elections.
His words: “Deploying soldiers for elections is as dubious as it is unconstitutional. The constitutional duty of soldiers is to protect and safeguard the territorial landmarks of Nigeria from external aggression. Election is not war. Election is civil responsibility of the citizens. Mere presence of soldiers has the potential of scaring some voters. It is only in Nigeria that we use soldiers for all manner of duties. Let us keep soldiers out of our elections and confine them to their traditional role.”
A constitutional lawyer Mr Ike Ofuokwu believes deploying soldiers is an indication that the Federal Government has totally lost faith in the police.
“To go looking for the soldiers is a tacit vote of no confidence on the Police Force. Then why still maintain a Police Force that cannot provide adequate security during General Elections?
“To drag the military into intimidating opponents and voters on election day under whatever guise is to further devalue whatever value is left of the armed forces. We are still confronted with manpower challenges in fighting insurgency in the Northeast, so if no sinister motive, why bring in the military into electoral matters?” Ofuokwu asked.
To him, elections can never be free and fair where voters feel intimidated by the presence of soldiers.
“Please who actually is afraid of free and fair elections? Nigerians need to know. The political class needs to be warned of the urgent need to keep the military away from government to enable them focus on their core objectives.
“The interpretation of section 217(2)(C) of the 1999 Constitution can comfortably be on either side of the divide depending solely on the viewpoint of the speaker. But as it is now, the Federal Government cannot afford to defy the Court of Appeal judgment barring the use of soldiers in the conduct of elections. There is no need for academic argument; it is a judicial pronouncement except the Supreme Court rules otherwise. INEC itself cannot afford to be contemptuous of this ruling.”
Is there any circumstance that may warrant the military being deployed during an election? Ofuokwu answers: “The military can provide peripheral 
security services within any part of the country or the states but without coming close to the polling arena. To do otherwise is a violation of Section 217(2(c) of the Constitution and Section 1 of the Armed Forces Act as pronounced by the court of appeal.”
However, Dr Joseph Nwobike (SAN) believes the issue of whether or not to deploy soldiers for elections is more political than legal. He noted that there are very compelling reasons to deploy soldiers in some troubled areas.
“With respect to those areas, I believe that the President, as the chief security officer of the federation, should deploy soldiers to maintain peace and order immediately before, during and after the elections.
“On the other hand, there are areas where the security situation is not volatile. There will be no reason to deploy soldiers in those areas. There are also borderline areas where the possibility of electoral violence of high proportion is likely.
“In such areas, it is expected that the President will look at the security reports and do the needful. In all, the President is entitled under the constitution to enforce law and order during the general election,” Nwobike said.
The SAN said President Jonathan should use his discretion, notwithstanding the recent judgments, as he would be blamed should there be a major security breakdown during the polls.
“Some opponents of the deployment of soldiers during the general elections have been relying on the decisions of the Federal High Court in Sokoto and that of the Court of Appeal, Abuja.
“While I do not contest the validity of those decisions, I take the view that they do not prevent or take away the powers vested in the President to deploy soldiers whenever the need arises.
“It is very unfortunate that politicians have now successfully politicised the simple issue of national security. The same politicians are the ones that will quickly condemn the President if security breaks down anywhere in the country during the election.
“So, I believe that the President should exercise his discretion in the national interest, at all times,” Dr Nwobike added.
