By Aloy Ejimakor | NNP | April 4, 2015 – On January 16, through it’s top lawyer, Chukwuma Machukwu-Umeh (SAN), APC had, relying on two court orders, written the President, stating that ‘until there is an enabling Act of the National Assembly, the court orders are obeyed and armed forces personnel are never again deployed in any form of security supervision of our elections’.

 

Then, on March 16, as if on cue, Jega, at a public forum, said that ‘The Army are not supposed to be visible at any polling unit except there is a breakdown of law and order and they have been invited by the Inspector-General of Police (IGP)’. In my considered view, both APC and Jega are wrong; and below are the reasons: 

 

First: Contrary to Jega’s assertions, it’s the President, not the IGP, that determines the ‘operational use’ of the armed forces in all circumstances, not excluding elections. Beyond elections alone, the President can also call out the military to aid civil authorities on other matters, such as disaster relief, etc. It is a cardinal part of the President’s exclusive powers as the sole Commander-in-Chief, thanks to the Constitution. As such, it is beyond the narrow mandate of Jega, as an INEC Chairman appointed by the President, to dabble into the constitutional question of the reach and limits of the President’s executive powers on this matter.

 

It is also a sensitive issue Jega should have parried; and diplomatically leave it to the President, and the National Assembly which exclusively regulates such powers. Why Jega would jump into the fray and aggressively take a partisan stance in sync with the APC is probably the same reason he has consistently sided with the APC against the President on all contentious matters relating to these elections.

 

Second: The APC had asserted that the ratio of one ruling, by Justice Aikawa (Sokoto Division), restrained the President ‘from engaging the service of the Nigerian armed forces in the security supervision of elections without Act of the National Assembly’. And the other, by Justice Aboki (Abuja Division), which held that ‘the President has no powers to call on the Nigerian armed forces and to unleash them on peaceful citizens, who are exercising their franchise’. These quotations were gleaned from APC’s said letter to President Jonathan, which is at issue here.

 

Now, let us analyze the kernel of these two rulings and see whether their respective ratios are, per APC, applicable and thereby absolutely barred the President from deploying the armed forces to election locations or election-related security duties. Relevant here is Section 217 of the Constitution, which provides in pertinent part that ‘The Federation shall equip and maintain the armed forces for the purpose of 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’.

 

Put in the context of the above provisions, it is safe to say that the ratio of the foregoing two rulings did not squarely capture the letters and spirit of the the provisions, to wit: ‘acting in aid of civil authorities to restore order when called upon by the President’. To be sure, this phrase does not mean the same thing as using the armed forces for ‘security supervision’; and ‘unleashing them on peaceful citizens’, per their Lordships, Aikawa and Aboki, respectively. And to be clear, the President never said that soldiers will be deployed for the reasons cited by the learned Lords.

 

Third: in view of the the foregoing, the crux of the matter should now turn on the plain meaning and reach of the limitations contained in the words: ‘subject to such conditions as may be prescribed by an Act of the National Assembly’. The question, therefore, is whether the National Assembly has or has not set such conditions. Yes, you guessed it – the National Assembly has since set such conditions and they are enacted at Section 8 of the Armed Forces Act, which provides that “The President shall determine the operational use of the Armed Forces. 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“.

 

Now, Jega and APC should rue this and consider whether, apart from Boko Haram, is it not this very election that presently poses the greatest threat to ‘public safety and public order’ in Nigeria of today? It is beyond belief that APC and Jega are blind to a threat so real and looming that it is in greater proportions than the one that propelled the carnage witnessed in 2011.

 

Does it make sense then to, as Jega implied, for a responsible President to wait until the slaughtering begins before he hastens to call out the armed forces? No. It doesn’t make any sense because every Nigerian live is precious; and as the Constitution provides at Section 5, ‘the executive powers of the Federation shall be vested in the President (and) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws”.

 

Thus, as exemplified by the Armed Forces Act, the National Assembly has made such laws. It is now in the hands of the President alone, not Jega or APC, to execute such laws, which includes the targeted deployment of the armed forces, specifically “for the purpose of maintaining and securing public safety and public order” on Election Day.

 

Aloy Ejimakor, a lawyer writes from [email protected]

08032651660 (texts only).