Mike Ozekhome, SAN
My earlier view on this issue of deployment of soldiers was that the president can lawfully deploy the military to aid our weak Police to maintain security in a volatile region, whether before, during, or after elections. This was however not a clarion call for the military to usurp the policing powers of the Police under Sections 214 and 215 of the 1999 Constitution. Their role, I had argued, about 4 years ago, was merely complimentary, not usurpatory, to help nip in the bud, violent cases of insurrection, insurgency, restore law and order, defend Nigeria’s territorial integrity and secure Nigeria’s borders from violation, whether by land, air or sea. These tasks, I had argued, cannot ordinarily be performed by our ill-equipped Police. This was also not a licence for the military to appear on the streets to hunt down unarmed protesters, I had theorized.
My argument then was that the military be allowed to patrol the streets with Police during elections, and even help to escort election materials, especially in volatile areas, because they cannot, with a snap of the finger, be invited from the barracks, when serious civil unrest of the usually desperate politicians that outweighs Police powers finally breaks out during an election. Even then, I had argued that this does not empower the military to be present or found near or around polling booths or polling units (as we saw, most unfortunately, during the last presidential elections). That is not their function, I argued. Such close monitoring of elections and voting are the exclusive preserve of members of the Nigeria Police Force and Civil Defence, not military, I had preached. Any military presence at such voting precincts will rather scare away voters, rather than give them a feeling of security and safety. These were my views, some four years ago. I had viewed the military, especially the Army, as a national institution that was incapable of taking sides with any political party, or being used against the people.
CHANGING TIMES
Alas, so much water has since passed under the bridge, with the partisanship clearly displayed by the military in the last election, that I am now forced to reconsider my earlier views and resile from them. I hereby do so. The actions of the present military have not been above board. The massacre of the Shites in their hundreds, repression and suppression of unarmed IPOB members, proclamation of “Operation Python Dance I”, “Operation Python Dance II”, “Operation Crocodile Smile II”, “Operation Tsera Teku”, “Operation Awatse”, “Operation Mesa”, “Operation Sharon Daji/Harbin Kunama II”, “Operation Safe Haven”, “Operation Ruwan Wuta II’, etc, have combined to reshape my thinking and change my mind. Many of these “operations” have been used to decimate the cherished fundamental rights of innocent and unarmed citizens, rather than checkmate the ills and evils they were primarily designed for.
Soldiers have been caught on video in Obior, Eleme, Opobo, Nkoro, Ogba/Egbema, Asari-Toru, Akuku-Toru, Ogba/Egbema/Ndoni LGAs of Rivers State doing the unthinkable. Others were caught pants down in Oyo, Akwa Ibom, Edo, Delta, Bayelsa, Imo, Abia, Kaduna, Taraba, Zamfara, Sokoto, Benue, and Plateau states, doing highly unprofessional things during the election. They were cocking guns, shooting sporadically, harassing, intimidating, beating, rough-handling and actually aiding thugs of a preferred political party to snatch and cart away ballot boxes and ballot papers. In many instances, they were seen, on viral videos, preventing voters of some political parties from accessing the voting and collation centres, while simultaneously allowing those of a preferred political party to access the same centres. This is simply not acceptable. It is barbaric, to say the least.
Never before in the history of Nigeria have we beholden the Army so glaringly partisan, so politically and physically involved in the electoral process, even more than the Police could ever have dreamt of or contemplated. How can any sane person, with these unprecedented and ugly scenarios still hold on to his earlier view (as my previous view), which had canvassed that an apolitical military (especially the Army), be deployed to the streets before, during and after elections, for purposes of protecting the very citizens they are now oppressing, repressing and subjugating? I cannot, in order to court consistency and objectivity, be a chained slave to such anarchy, impunity, audacity and derailment from basic principles of military duties and professionalism by the military. I therefore now hereby abandon my earlier stance on issues of deployment of the military. I hereby publicly apologise if my earlier view had unwittingly helped to shape government’s skewed perception, belief and action in the wanton deployment of the Army during the last elections, to terrorise an already prostrate and beleaguered citizenry.
PRESIDENT BUHARI’S SHOOT-AT-SIGHT ORDER
It is also crystal clear to me that President Muhammadu Buhari’s order that the military should shoot any ballot snatcher was clearly wrong, illegal, unlawful and unconstitutional. No doubt, ballot box snatching is an electoral offence. That is why Section 129 (4) of the Electoral Act, 2010 (as amended), provides that “any person who snatches or destroys any election material shall be liable on conviction to 24 months imprisonment”. For any violator of this Section, 24 months awaits him in the cold embrace of the prisons. Section 130 goes further to criminalize all acts of threats, force, violence, restraint, injury, damage, loss, harm, abduction, duress, inducement on the part of any person, or the prevention of any person from voting, or preventing candidates from free use of the media, designated vehicles, mobilization of support and campaign at elections. A person who commits any of the above acts is liable to imprisonment for 3 years, or to a fine of #1 million, upon conviction.
This law is too clear to admit of any ambiguity. It does not impose the death sentence since such pronouncement as the president made could easily be misused. It was indeed misused during the last elections, which many observers (especially the local ones who were not compromised or intimidated), have adjudged to be the worst and most violent elections ever held in Nigeria, having recorded unprecedented numerous deaths.
In warning politicians, Buhari had declared before the presidential elections, “so I am going to warn anybody who thinks he has enough influence in his locality to lead a body of thugs to snatch boxes or to disturb the voting system he will do so at the expense of his own life”. I had condemned this statement then for being unpresidential, inflammatory and incidinary. The way and manner some trigger-happy soldiers were caught on video killing innocent voters and invading people’s private homes, especially in places like Lagos, Rivers and Bayelsa states have since validated my earlier fears that soldiers should not have been given such orders to shoot-at-sight, any alleged ballot snatchers. Surely Ms. Ibisiki Amachree, an adhoc INEC electoral officer who was killed by an alleged stray bullet couldn’t have been a ballot box snatcher. The cold-blooded murder had forced INEC Chairman, Prof Mahmud Yakubu, during his briefing after the presidential election, to declare: “This is not the right time to assess institutions and security agencies. We will review the situations after elections and see how to improve on our security architecture”.
Had Mr President withdrawn his order, Nigerians would have been saved the needless deaths we witnessed. Indeed, INEC had attempted vainly to douse the conflagatory impact of PMB’s speech before the elections, but it came to naught,
too little and too late.
INEC, through its chairman, Prof. Yakubu had stringently disagreed with Buhari. He had said: “The position of the Commission is that all violations of the Electoral Act should be punished accordingly to the provisions of the Electoral Act, which states that persons who snatch election materials are liable to a prison term of two years or maximum fine of #500,000”.
WHAT EXACTLY ARE THE PRESIDENT’S POWERS?
Deployment of the military in some insurgent-prone areas to fight insurgency or war is certainly not the equivalent of the president’s powers of deployment of the military in aid of civil authorities. That is specifically covered by Section 217 (2) (C) and the concurrence of the Senate is constitutionally required. The section provides as follows:
“(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”;
In the United States of America, the war powers resolution requires the president to notify congress within 48 hours of committing armed forces to military action. Article 1, Section 8, Clause II of the U.S Constitution grants Congress the power to declare war. The president, on the other hand, derives his power to direct the military after a congressional declaration of war from Article II, Section 2, which names the president as the Commander-In-Chief of the Armed Forces. (To be concluded next week)
THOUGHT FOR THE WEEK.
"Illegality will never solve the problem of political lawlessness. Problem Political Never". (Emanuel Celler).
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