The days have passed when, as students, we read books by Professors and authors like Prof. Itse Sagay with awe and total submission without giving ourselves the opportunity to interrogate the points made by the Professors and wuthors. Today, however, things have changed. We now know better that a lot of the Professors are indeed human and are liable to make mistakes or to hold wrong legal opinions.
This is very true regarding the position of Professor Itse Sagay on the the deployment of military during elections. I read the learned SAN Professor’s view on this issue on pages 34-35 of the Vanguard newspaper of today Thursday, March 5, 2015, an article that stood side by side with my own article on the same pages. The learned Professor Silk seemed to turn law on its head when he stated that a Section of the Constitution is subject to another Section of the same Constitution even where this is not expressly so stated in the sections. How can you say Section 218 of the 1999 Constitution of Nigeria (a clearly independent section) is subject or inferior to Section 218 of the same Constitution? Wonders shall ever end. The learned Silk made this claim apparently to prove his position that military cannot be deployed during elections.
With profound respect to the learned Prof., nothing in Section 218 makes it subject to or inferior to Section 217 and vice versa. In the same vein, nothing in Section 217 makes Section 218 subject to or inferior to it. Why is the learned Prof importing into the Constitution what is not there? It is so absurd and contrary to the statutory principle of interpretation of statutes known as literal interpretation to the effect that where the express words used in a statute are clear and unambiguous, the words must be given their ordinary and every day meaning and there is no need to import any further definition or words into the statute.
In any event, if the point is that any power of the President to deploy the military during the elections is derivable from Section 217 (without so conceding), then it stands to reason that the National Assembly has, pursuant to the said Section 217, enacted the Armed Forces Act which by virtue of Section 315 of the same Constitution is an existing law deemed as having been enacted by the National Assembly. So, even if we follow Prof Sagay’s argument that the President can only use the military upon a law made by the National Assembly, then we can safely say that the National Assembly has done just that by enacting the Armed Forces Act, Section 8 of which clearly empowers the President to determine the operational use of the military. Operational use of the military was also defined by the same Section 8 of the Armed Forces Act as having to do with maintaining and securing public safety and public order.
The natural conclusion is that the learned Professor and others arguing in the same light as to deny the President the power to deploy military to help maintain security and order during elections are all arguing per incuriam (wrongly).
Please note that editors of Vanguard newspaper cut out important parts of my article perhaps for want of space. They cut so much that the entire sense of the article was lost. I hereunder reproduce the concluding part of the article in the event you have read it from the newspaper:
“…(2) It shall be the duty of the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, as the case may be, to comply with any directive given to them by the President under subsection (1) of this section.
(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 the above constitutional and statutory provisions, it is clear that the President is empowered to deploy the military for the purpose of maintaining and securing public safety and public order. Herein lies the justification for the deployment of military to provide security for elections.
Instructively, is there any justification for the use of the military to prevent violence in our elections, given the antecedents of our elections?
Every keen and honest observer of previous Nigerian elections must answer the question in the affirmative. In the 1999, 2003 and 2007 elections, we all witnessed unprecedented levels of election violence and rigging that it was clear that the Nigerian Police was incapable of rendering security protection for elections. We also found out that the Police was not capable of living above board as they even assisted in compromising both the electoral process and the declared results. Police took bribes and turned the other way while atrocities were perpetrated. It was owing to the inadequacies of the Police that it became necessary to even use the military. Had the Police lived up to its responsibilities, there would have been no need to bring in the military in the first place.
To add to the story, as soon as the military got involved in elections, we saw a marked difference in how our elections turned out. For example, the elections in Edo State, Ondo State, Anambra State, Ekiti State and Osun State were all conducted under peaceful conditions and with very minimal rigging such that it became clear that the military can be useful to our elections until such a time that we, as Nigerians, have become orientated enough to imbibe democratic ethos as part of our culture. In the elections in the above States, we saw little or no ballot box snatching or stuffing. Even the Governor of Edo State, Comrade Adams Oshiomole commended the military for its role during the Edo State elections.
It is this writer’s humble view that the relevance and necessity of the military in providing security during our elections in present day Nigerian electoral conditions cannot be overemphasized. We can only look for ways to fine tune it to ensure minimal interference by the military in the process. It is also the view of this writer that the military in an electoral process should be used sparingly; limited to security issues and not interfere in the electoral process. It is also important that voters and other stakeholders have sufficient trust in the military if their role is to be seen as legitimate.
To all intents and purposes, the military being used for the elections can only be in such a way as to aid the successful conduct of the elections and not otherwise. To that extent, it becomes the agent of the electoral commission, INEC, who uses it in such a way that it deems fit to ensure the success of the elections eg to serve as military escort and then assist in securing counting centres. This much was stated by the Appeal Court in the Fayose case that as far as the election was concerned, the military could only be categorised as agents of INEC.
Certain foreign countries, including Latvia, allow soldiers’ participation not only in the organisational and technical aspects but also in the security preparation for elections. The military was used in the 1994 South African elections while in Bangladesh elections, the military is used in voter registration exercises because of its huge and unparalleled logistical capacity and good reputation.”
IKECHUKWU IKEJI, ESQ.