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Consent of the N/A: A necessity for troops’ deployment

T he Federal Government has granted amnesty to Niger Delta militants, who have been fighting government and oil multinationals over the deplorable conditions of the Niger Delta region as a result of activities of oil companies. It will be recalled that President Umaru Yar’Adua, had deployed the military (Joint Task Force) to the region to check the militants.

It is instructive to point out that the President did not get the consent of the National Assembly before deploying the military to the region and opinions have remained divided over the matter.  Brigadier-General Do Idada Ikponmwen (Rtd), in this edition of Law and Human Rights, takes a critical look at the issue of whether the President has powers to deploy the military to any part of the country without the consent of the National Assembly and concludes that it is a dangerous trend for the President to deploy the military at will to any part of the country without the approval of the national lawmakers.
Excerpt:

Having read the write up titled “Niger Delta Crisis: President need not inform N/A on deployment of military” on your Law and Human Rights column of your Friday, June 19, 2009 edition, I am of the view that the write up is capable of misleading the generality of the public.

Troops’ deployment can arise from two causes: (1) In response to external aggression and (2) to address internal civil disturbances, both are governed by the constitution and therefore not an issue for discretion by either the President or the National Assembly.

Before going into specific relevant provisions, it is appropriate to emphasize that the Presidential system is characterized by strict separation of powers between the arms of government and by distinct checks and balances both of which are meant to prevent absolute or wide discretionary powers in any arm of government or any person for that matter.

Even though executive power of the federation is vested in the president, the exercise of such powers are required by the constitution to be in accordance with the provisions of the constitution and in conformity with any law made by the National Assembly. (See section 5 (1) (a) and (b) of the constitution). Furthermore, though the power to declare war and to safeguard national sovereignty is vested in the president, the president cannot declare a state of war except with the sanction of a resolution of both Houses of the National Assembly. (see section 5 (4) (a) )  this is part of the check and balance inherent in our presidential system.

Notwithstanding the fact that the president is the commander-in -chief of the armed forces, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria except with prior approval of the Senate. (see section 5 (4) (b)) It is also particularly noteworthy that even though the President can, in the face of imminent threat to the nation, deploy troops on a limited combat duty outside Nigeria he can only do so after consultation with the National Defence Council.

Even at that, the President shall within 7 days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days. In other words, combat operation by the armed forces outside Nigeria cannot be sustained beyond 21 days without the approval of the Senate.

With respect to the use of the armed forces internally for addressing insurrection and acting in aid of civil authority, even though the president is empowered to call in the troops, he can do so only in line with laws made by the National Assembly, see section 217 (2) (c). This is the constitutional provision guiding the use of troops for internal law enforcement duty.

It is inherent in this section that the military is not for routine law enforcement duty and that the use of the military in this role must be in accordance with the laws of the National Assembly in this respect. It is also manifestly clear that this section must be read subject to section 305 which spells out when and how to use the armed forces as an extra-ordinary measure to address internal disorder. In other words, there can be no resort to the military for law and order role unless there is a declared state of emergency being the combined effect of sections 217, 218 and 305.

Section 218(1) vests power to determine the operational use of the Armed Forces on the President. This section does not contemplate absolute or wide discretionary power in the president; if it were so there would have been no need for the provision of Section 218 (4)particularly (a) which provides that “The National Assembly shall have power to make laws for the regulation of-the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation” It is clear from the foregoing provision that the National Assembly is vested with a supervisory role and duty over the exercise of the President’s powers as to the operational use of the Armed Forces.

From the wordings of Section 218 (4) particularly paragraph (a), the National Assembly has the constitutional power to make laws which would lay down rules and regulations to “guide” the President in the exercise of his power over the command and operational use of the Armed Forces. The position of the drafters of the constitution must have been informed by the widely accepted notion that  Power corrupts and absolute power corrupts absolutely.

Flowing from the provision of the forgoing section, it is proper to infer that the National Assembly, as representatives of the people, has ultimate power over the Armed Forces and that the President is in fact only a delegate of that power on account of his position as head of the executive arm of government.

The use of the phrase “shall have the powers to make laws for the regulation of……” as contained in the foregoing provision connotes compulsion on the part of the National Assembly to pass regulatory laws with respect to the exercise of the president’s powers as Commander-in-Chief of the Armed Forces. This goes to stress the point that the National Assembly cannot allow the exercise of such powers to be left solely and exclusively at the discretion of the president.

It is therefore the constitutional duty of the National Assembly to enact regulatory laws to check the powers of the president in line with section 218(1) of the constitution. Since there have been no such laws, there is a loophole, vacuum and a lacuna in our system placing the use of the Armed Forces entirely at the absolute discretion of the President.

Sad as it sounds, that has been the unfortunate situation in Nigeria since the inception of the presidential system over 30 years ago and in over 16 years of actual operation of the presidential system. The constitution is the grundnorm of the federation and it’s provisions ought to be complied with to the letters. Paragraph (a) of section 218(4) does not intended to frustrate  the president’s power over the operational use of the Nigerian Armed Forces, but is intended to check abuse especially in our kind of environment.

The failure of the National Assembly over the years to make laws as contained in sections 217, 218 and 305 is evidently a ringing indictment of the legislature whose duty it is to ensure the proper working of the presidential system as entrenched in our constitution. The provisions of section 218 (4) among others, aim at using the legislature as an instrument for strengthening the in-built checks and balances in our presidential system. It is said that the nation is yet to benefit from these provisions due to the lack luster attitude of the National Assembly in this matter.

The military establishment possesses unique equipments and specially trained personnel. That establishment is not intended to be involved in routine police duties which is the premise of the Nigeria police together with other civil security organizations. The resort to the military for law enforcement duty ought to be a matter of last resort and guided by the strictest interpretation of the provisions of Section 217, 218 and 305 of the constitution. These provisions point to the inevitability of the National Assembly in the process of using the armed forces for law enforcement duties.

It is important to note that these are constitutional provisions intended to supplement, and indeed complement the other provisions of the constitution in the drive to ensure separation of powers as well as checks and balances that characterize the presidential system of government. It is therefore apposite to take a queue from the position of the United States after which our system is fashioned.

Americans have for years widely frowned at the use of the military for routine law enforcement duties; there, even though the President is commander-in-chief of the armed forces, his resort to the military for law enforcement duties must be in line with the provisions of the American constitution and laws of the Congress.

Indeed, Article 4 Section 4 of the U.S constitution provides that “the United States shall guarantee to every state in the Union a Republican form of government, and shall protect each of them against invasion; and on application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence” Thus, the power to engage the military flows from the Congress, just as the power to declare war, grant letters of marque…, to raise and support armies, to provide and maintain a navy and to make rules for the government and regulation of the land and naval forces vests in the Congress.

Besides these constitutional provisions, which emphasize the power of the legislature in the establishment, sustenance and use  of the military, there is this age-long Posse Comitatus Act (PCA) of 1878 which has remained largely the law on this subject matter in America .

The PCA provides “Whoever, except in cases and under circumstances expressly authorized by the constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.” The PCA placed a stop on the use of the military as part of the force of able bodied men available to Marshals and local Sheriffs inherited from England.

Not withstanding some current isolated arguments as to the need for amendment to PCA, the fact remains that Americans, like many Nigerians, still widely believe that the military should be insulated from routine law enforcement duties. Indeed, even those who argue for amendment to the PCA still maintain the stand that the need to avoid abuse is central to the PCA. It must be submitted therefore that the need for avoidance of abuse is even more important in our nascent democracy than the American society.

Even more important is the fact that whereas the American PCA is only a law of the Congress, the prescription for cautious use of the military in civil law enforcement in Nigeria is embedded in our constitution. The issue before this nation therefore is one of complying with the constitution to enhance good governance, the alternative to which is great potential for abuse of power and danger to our democracy.

In view of the specific provisions of our constitution on this subject matter, it is evident that the use of the military to address civil disturbances, and the powers exercisable by the commander- in-chief of the armed forces are matters the National Assembly have inevitable and overwhelming role.

Everyone is expected to play according to the rule of the game; it is no issue for sentiments or emotions and so the question of depending on maturity as substitute for proper discharge of duty to make laws or to give or withhold approval for troops’ intervention as required by the constitution does not arise.

It is in this vein that the write up in Law and Human Rights column at page 43 of your Friday, June 19th 2009 edition captioned Niger Delta Crisis: President need not inform N/A on deployment of military does not catch my fancy and I think that same is capable of misrepresenting the true position of our constitution and for that reason needs to be corrected.


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