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The legality of president’s power over armed forces command, operational use

A member of the National Assembly recently questioned the power of the President to deploy the military to the trouble Niger Delta region. Emmanuel Majebi Law and Human Rights contributor in this edition, examines the powers of the Present to deploy the military as the Commander in Chief of the Armed Forces.

There was recent comment of a member of the National Assembly that the President did not inform the National Assembly of the armed operation being carried out by the Nigerian Armed forces against criminal gangs in the Niger Delta area of Nigeria.

That statement was made in  a manner that seemed to convey a message that the President and Commander in Chief of the Federal Republic of Nigeria as a condition precedent needs to inform the National Assembly before engaging his power over the operational use of the Armed Forces.

I recognize the fact that this statement was made outside the precincts of the National Assembly by a one single member and it may just be his own personal views. But it is still necessary to look at the law to find out if indeed the President has any such stated obligations in exercising his powers as the Commander in Chief of the Federal Republic of Nigeria.

The relevant sections of the constitution in this regards are the sections 217 and 218 of the 1999 Constitution. Is there any thing in these sections, or other parts of the constitution or any other law indeed which requires the President to take permission from or inform any body or group of persons about his decision to engage his power over the operational use of the Armed Forces? Section 217 (2) ( c ) provides thus: 217..(2) The Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of…

(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; and 218. (1) on the other hand provides that “…..

The powers of the President as the Commissioner-in-Chief of the Armed Forces of the Federation shall include power to determine the operational use of the armed forces of the Federation.

(4) The National Assembly shall have power to make laws for the regulation of – (a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation;

A perusal of the foregoing provisions of the sections quoted above especially section 218(1) leaves no one in doubt about the fact that the President is the appropriate authority empowered by the constitution to exercise the authority of Commander in Chief of the Armed Forces i.e the “… determination of the operational use of the armed forces….”

The provisions of section 217 (2) ( c) and 218 (4) of the constitution gives the National Assembly a supervisory role over the exercise of the President’s power under the relevant section of the constitution. The particular phrase that is used here in sub section 4 of section 218 states : “… the national assembly shall have the powers to make laws for the regulation of….”

 President Umaru Yar'Adua and  Senate Preasident Senator David Mark.
President Umaru Yar'Adua and Senate President, Senator David Mark.

It is within the legitimate powers of the National Assembly where it deems it necessary to pass a law which will lay down rules and regulations that would “regulate” the President in the exercise of his powers over the command and operational use of the Armed Forces. There is nothing in the said section which connotes compulsion  on the part of the National Assembly to pass any such regulatory laws with respect to the exercise of the President’s power as Commander in Chief.

This means that the National Assembly can choose to leave the exercise of such said powers solely at the discretion of the President or regulate him by passing certain laws.
In my own opinion there for a correct legal interpretation of the this section of the constitution is that where the National Assembly has not passed any laws thereof; regulating the powers of the President over the operational use of the Armed Forces is totally at the President’s discretion.

The only way that the Constitution permits the national Assembly to regulate these powers is by passing a law thereof; not by resolutions or press interviews or any other means. This view of mine is supported by the view of the renowned late Professor of Constitutional law Prof Jadesola Akande in her book “Introduction to the Nigerian Constitution” .

Commenting on section 198 of the 1979 Constitution which is on all fours with the provisions of section 218 of the 1999 Constitution said “ …it would seem that there are no constitutional limitations on the exercise of this power other than the power of the National Assembly to make laws for the regulation of the power….”

The above opinions on the relevant sections of the constitution seems to support my view the opinion that the President either needs to inform any person about the engagement of criminal gangs in the Niger Delta or to take any permission to do so, has as of this moment no legal backing.

It is only when the National Assembly has exercised it’s powers as under the Constitution and passed laws to regulate the exercise of the President’s powers that the issue of restraints to the President’s power over the operational use of the Nigerian Armed Forces can arise.

The National Assembly no doubt has the Constitutional Powers to regulate the exercise of the President’s power over the operational use of the Armed forces but it is a power which the National Assembly must use with utmost maturity; in such a way that the power of the President to enhance national security would not be  damaged or weighed down under unnecessary restrictions to  utter disastrous consequences.

The exercise of the President’s power over the operation use of the armed forces has 2 legs; viz use of his powers in checking external aggression and his use of such powers in checking internal insurrection and breakdown of law and order.

The use of the President to thereto in the checking external aggression, would not readily raise any controversies in Nigeria or moos democracies the world over. I do not think there is any member of the National Assembly who would want to attempt to impose any restriction on the President that would have the effect of making it impossible  for the President  to act timeously or be bogged down by unnecessary bureaucracy, when there is a clear and present threat to our territorial integrity or national security by external aggressors.

Whilst the constitution makes in it’s provisions that the declaration of war on other countries can only be done with the concurrence of the National Assembly; history of wars which have been fought in the World since mankind started engaging on the art of wars show that by their very nature wars are not systematic events which usually gives room for all the niceties of congressional debates and approval.

In the 2nd world war period for example Japan attacked Pearl Harbour, Hawaii, USA suddenly and without any provocation and without any formal declaration of war. The  President of America had to act immediately and declared a war against Japan without the luxury of going to the Congress to get any formal approval. If the US Congress had passed any laws restricting the powers of the American President to mobilize the US Armed Forces against external aggression, the Japanese army may have been knocking on the doors of the White House before the Congress would have had time to convene and approve counter-action by the President.

The aspect of the use of the President’s powers over the operational use of the armed forces that is bound to involve a lot of debate is that part that relates to his  mobilization of the armed forces to quell internal insurrection. This part of the President’s power is no doubt very prone to abuse especially in a 3rd world country like Nigeria where office holders have not yet shown the type of statesmanship demeanor necessary for responsible leadership.

The possibility of abuse not withstanding, I am of the opinion that the National Assembly must be very careful in passing any laws that would regulate the uses of the president’s power in this regard as they have power to do under the constitution.

The President must not be tied down unnecessarily such that when there is a sudden and catastrophic breakdown of law and order or armed internal insurrection, he will have to seek the national Assembly’s go ahead whilst the country may be burning.


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