A Federal High Court sitting in Lagos, southwest Nigeria, on
Monday, restrained the President Goodluck Jonathan-led Federal
Government from deploying the military to supervise the coming general
elections.
The presiding Judge, Justice Ibrahim Buba, in his ruling, declared
that it is unconstitutional to deploy military for the supervision of
election without the approval of the National Assembly.
The ruling of the court, was sequel to a suit filed by Femi
Gbajabiamila, a member of the House of Representatives representing
Surulere Federal Constituency 2 under the platform of All Progressives
Congress, APC against President Goodluck Jonathan, Chief of Defence
Staff, Chief Of Army Staff, Chief of Air Staff, Chief of Naval Staff and
the Attorney General of the Federation.
In his argument, Seni Adio, lawyer to the plaintiff, argued that
there was an allegation and evidence that the military inhibited free
movement, free access and intimidation of voters in of Osun, Ekiti, and
Anambra where the military were deployed during the governorship
elections in those states.
In addition, Adio argued further that it is not ideal to deploy the
military to supervise election in a democratic setting. Consequently,
considering what happened in Osun and Ekiti in 2014 and Anambra in
November, 2013, he urges the court to restrain the defendants from using
the military in the coming elections.
Mr. Dele Adeshina, SAN, opposed the application on the ground that
the President being the Commander-In-Chief of the Armed Forces, is
empowered under Armed Forces Act to deploy the military to maintain law
and order.
In his response, Adio said the Armed Forces Act is subordinate to the Constitution of the Federal Republic of Nigeria.
Monday’s ruling tallies with that of the Federal High Court in
Sokoto, Northwest Nigeria, which had on Thursday, 29 January, 2015,
outlawed the use of the military for election duty across Nigeria.
The court ruled on the lingering controversy and declared the use of soldiers as unconstitutional.
Justice Mohammed Rilwan Aikawa ruled that other than for the purposes
of protecting the nation’s territorial integrity, no constitutional
provision allows for the deployment of the military for elections.
The suit challenging the deployment of military for election duties was
instituted by the Deputy Speaker of the House of Assembly, Bello
Goronyo, representing Goronyo Constituency in Sokoto State.
Justice Rilwan added that for the Federal Government to do so, it
must have taken recourse to the National Assembly, which would enact
such law.
The presidential candidate of the opposition All Progressives
Congress, APC, General Muhammadu Buhari had early in January warned
President Goodluck Jonathan against further deployment of soldiers to
cities and towns during elections.
He said that the soldiers were meant to defend the territorial integrity of the country and not for policing elections.
Whereas few military men have been deployed to tackle insurgents in
the north east, he said a large number were deployed to monitor
elections.
Also, 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.
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 blackmailed 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.
About Author
